26 October 2002

DARYL MELHAM MP

SHADOW MINISTER FOR JUSTICE

AND CUSTOMS

· NEWS RELEASE · NEWS RELEASE · NEWS RELEASE ·

15 September 2002

MORE TELEPHONE TAPS IN AUSTRALIA THAN THE UNITED STATES

The Shadow Minister for Justice and Customs, Daryl Melham, today called for stronger external scrutiny of telephone tapping and covert surveillance activities by Australian law enforcement agencies.

"It is a striking fact that Australian law enforcement agencies are resorting to telecommunications interception much more than their American counterparts, Mr Melham said. "They are tapping the telephones of Australian citizens at more than 20 times the rate in the United States."

"In 2000-01, 2,157 telecommunications interception warrants were issued to Australian law enforcement agencies under the Telecommunications (Interception) Act 1979. In calendar year 2001, US federal and state judges issued only 1,491 wiretap authorisations for law enforcement purposes. Australian interception activity also exceeded that in the US in 2000."

"Given that Australia’s population is 19.6 million while the United States has more than 284 million people, this amounts to a per capita rate of telephone interception in Australia more than 20 times that in the United States."

"Telecommunications interception is a vital weapon in the fight against crime. Criminals use increasingly sophisticated telecommunications services and interception is of considerable value in the investigation of serious crimes."

"That said, the tremendous growth of telephone tapping raises very important privacy issues and calls into question the adequacy of current external oversight arrangements. Telephone interception in Australia has increased exponentially. The number of warrants issued each year has increased nearly ninefold since 1988-89 – the first year official statistics were published."

"The most dramatic rise has taken place over the past four reported years with the number of warrants rising from 675 in 1997-98 to 2,157 in 2000-01 – more than a threefold increase. Federal and State law enforcement agencies spent more than $17 million on interception in 2000-2001."

"This massive increase in telephone tapping has continued in spite of the introduction of so-called ‘named person’ warrants that allow interception of more than one telecommunications service."

"Applications for interception warrants are almost automatically approved by Members of the Administrative Appeals Tribunal and Federal Court and Family Court Judges. In 2000-01, only 7 of 2,164 applications were refused or withdrawn. Very few other areas of public administration would claim an error rate of a mere 0.3 percent."

"In 2000-01, Australian law enforcement agencies made 1,033 arrests and obtained 623 convictions which were reliant on telecommunications interception. In 2001, US law enforcement agencies made 3,683 arrests and secured 732 convictions with one third fewer wiretaps."

"Between 1996 and 2001, US law enforcement made, on average, 3.31 arrests and secured 1.55 convictions for each wiretap authorisation. From 1995/96 to 2000/01, Australian agencies secured only 0.63 arrests and 0.46 convictions for each telecommunications interception warrant."

"Despite much higher usage of telecommunications interception, Australian law enforcement agencies appear less successful than their US counterparts in using this technology to put criminals behinds bars."

Mr Melham noted that the Commonwealth Ombudsman has the function of inspecting the telecommunications interception records of the Australian Federal Police and the National Crime Authority. A similar function is performed in relation to State police and law enforcement agencies by the Ombudsman for each jurisdiction.

"While the reports of the inspecting authorities to date indicate a high level of compliance with relevant legislation, the tremendous growth of interception calls into question the adequacy of the existing accountability regime."

"In this regard, it is significant that last year the Commonwealth Ombudsman employed only two staff for approximately two months of each year to inspect relevant AFP and NCA records."

"These two staff working part time were expected to inspect the records relating to 598 AFP warrants and 284 NCA warrants, each warrant in force for an average of 72 and 42 days respectively generating thousands of pages of information. It is highly questionable whether this is an adequate level of external supervision for this highly intrusive surveillance activity."

"There is urgent need to strengthen the resources available for external scrutiny of telephone interception activities and more broadly to provide more effective scrutiny of other forms of intrusive surveillance."

"In contrast to the Ombudsman’s specific audit role under the Telecommunications (Interception) Act, no similar external accountability arrangements exist for the use of listening devices by the AFP or the NCA. The installation and use of listening devices is no less intrusive than telecommunications interception. There is a strong case for comprehensive accountability arrangements that would encompass the full range of intrusive powers employed by Commonwealth law enforcement agencies."

"Consideration should be given to the establishment of a new external oversight agency similar to the United Kingdom’s Chief Surveillance Commissioner to oversee telephone interception, use of listening devices and other surveillance by Commonwealth law enforcement agencies."

"While telecommunications interception and other intrusive surveillance techniques are a powerful crime-fighting weapons, they involve great intrusions into personal privacy. They must be subject to strong external scrutiny to ensure that they are used sparingly and not abused."

Contact: Philip Dorling 0416 203 058

Table 1: Telecommunications interception warrants issued for law enforcement purposes in Australia 1988/89 to 2000/01

Source: Annual Reports prepared by the Attorney-General’s Department on the operation of the Telecommunications (Interception) Act 1979

	1988/89	1989/90	1990/91	1991/92	1992/93	1993/94	1994/95	1995/96	1996/97	1997/98	1998/99	1999/00	2000/01
AFP	169	195	188	186	212	287	231	231	184	190	377	496	598
NCA	33	44	28	30	72	78	105	103	78	98	147	259	284
NSW Police	28	52	79	69	52	76	100	101	94	140	233	257	390
NSW Crime Commission	0	22	23	36	38	61	89	112	117	83	173	267	404
ICAC (NSW)	N/A	0	0	0	8	1	0	3	7	15	10	7	14
Police Integrity Commission (NSW)	N/A	N/A	N/A	N/A	N/A	N/A	N/A	N/A	N/A	N/A	14	20	22
Victoria Police	16	27	62	119	110	118	126	156	115	82	194	253	294
South Australia Police	N/A	N/A	N/A	25	35	47	41	41	32	37	45	53	50
Western Australia Police	N/A	N/A	N/A	N/A	N/A	N/A	N/A	N/A	N/A	30	91	77	101
Total Warrants	246	340	380	465	527	668	692	747	627	675	1284	1689	2157

Table 2: Wiretap authorisations issued by US Federal and State Court Judges for law enforcement purposes, 1988 to 2001

Source: Annual Wiretap Reports issued by the Administrative Office of the United States Courts

	1988	1989	1990	1991	1992	1993	1994	1995	1996	1997	1998	1999	2000	2001
Federal	293	310	324	356	340	450	554	532	581	569	556	601	479	486
State	445	453	548	500	579	526	600	526	568	617	783	749	711	1005
Total Wiretaps	783	763	872	856	919	976	1154	1058	1149	1186	1329	1350	1190	1491

Table 3: Arrests and Convictions in Australia resulting from telecommunications interception 1995/96 to 2000/01

Source: Annual Reports prepared by the Attorney-General’s Department on the operation of the Telecommunications (Interception) Act 1979

	1995/96	1996/97	1997/98	1998/99	1999/00	2000/01
Total Warrants	747	627	675	1284	1689	2157
Arrests	657	493	625	633	1109	1033
Convictions	596	346	329	713	691	623

Table 4: Arrests and Convictions resulting from US wiretap authorisations 1996 to 2001

Source: Annual Wiretap Reports issued by the Administrative Office of the United States Courts

	1996	1997	1998	1999	2000	2001
Total Wiretaps	1149	1186	1329	1350	1190	1491
Arrests	4191	5272	5498	6400	5152	3683
Convictions	2361	2482	2992	2492	1884	732

Notes on Table 1

1. Recent Annual Reports on the Telecommunications (Interception) Act 1979 can be found at http://www.ag.gov.au/publications/pubs.htm.

2. Australian telecommunications interception statistics for 2001-02 have not yet been released.

3. Applications for warrants for law enforcement purposes may only be made by the AFP, NCA, and ‘eligible authorities" to which a declaration under Section 34 of the Telecommunications (Interception) Act 1979 is in force. In 2000-01, these agencies were NSW Police, NSW Crime Commission, Independent Commission Against Corruption, NSW Police Integrity Commission, Victoria Police, South Australia Police and Western Australia Police. The Northern Territory Police became subject to a Section 34 declaration in 2001-02. Queensland Police, the Queensland Crime Commission, the Queensland Criminal Justice Commission and Police Integrity Commission and Tasmania Police are not subject to Section 34 declarations, but may have access to intercepted information obtained by other intercepting agencies that is relevant to their investigations.

4. During 2000-01, approximately 94% of law enforcement telecommunications interception warrants were issued by Members of the Administrative Appeals Tribunal, 5% by Family Court Judges, and 1% by Federal Court Judges. In 2001-02, Federal Magistrates became eligible to issue telecommunications interception warrants.

5. Following entry into force of the Telecommunications (Interception) Legislation Amendment Act 2000, eligible law enforcement agencies have been able to apply for ‘named person’ warrants which target multiple telecommunication services which may be used by a person. The available statistics do not indicate the number of these warrants within the total of warrants issued in 2000-01.

6. The Australian Security Intelligence Organisation intercepts telecommunications for national security and foreign intelligence collection purposes under warrants issued by the Attorney-General. Statistics on the number of ASIO interception warrants issued each year are not published.

Notes on Table 2

1. Further US statistics can be found at http://www.uscourts.gov/wiretap.html and http://www.epic.org/privacy/wiretap/stats/wiretap_stats.html.

2. US wiretap authorisations (the equivalent of Australian telecommunications interception warrants) may be issued by Federal and State Court Judges for the investigation of federal offences by the Federal Bureau of Investigation and to State and Local law enforcement agencies in 44 States.

3. US law enforcement agencies may obtain ‘roving wiretaps’ to target a person rather than a specific telecommunications service if there is evidence of an intent to thwart interception by changing facilities. This provision is the equivalent of an Australian ‘named person’ warrant. ‘Roving wiretaps’ account for only a very small percentage of US wiretap authorisations – only 16 of 1491 authorisations in 2001.

4. US wiretap authorisations for foreign intelligence collection purposes (the equivalent of ASIO telecommunications interception warrants) are issued to the FBI by Members of the Foreign Intelligence Surveillance Court. Unlike statistics for ASIO warrants, the annual number of Foreign Intelligence Surveillance Act Orders (for electronic surveillance and physical searches of premises) is published. The number of Orders issued from 1996 to 2001 is as follows: 1996, 839; 1997, 748; 1998, 796; 1999, 886; 2000, 1012; and 2001, 934. Notably, notwithstanding the investigation of the terrorist attacks of 11 September 2001, the figure for 20001 is 8% less than in 2000.

Notes on Tables 3 and 4

1. Australian statistics on arrests and convictions arising from use of telecommunications interception information are for the year in which arrests and convictions take place. Relevant interception may have taken place in a preceding year.

2. US statistics on arrests and convictions from the use of wiretaps are for the year in which interception took place (i.e. all arrests and convictions arising from interception in a given year, whether made or secured in that year or subsequently). As a consequence it can be anticipated that the figures for 2000 and 2001 will rise significantly in subsequent annual reports as further arrests and convictions are recorded.