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ASIC’s Access to Telecommunications Intercept Material

The submission to the Australian Securities and Investment Commission's (ASIC) Enforcement Review Taskforce (the Taskforce) Positions and Consultation Paper 5, ASIC’s Access to Telecommunications Intercept (TI) Material (the Consultation Paper) was prepared by the Law Council. 

The Consultation Paper outlines reforms aimed at enhancing ASIC’s access to TI material for the investigation and prosecution of serious offences and thereby assisting ASIC in achieving its legislative objectives.1 ASIC currently has access to telecommunications data and stored communications under the Telecommunications (Interception and Access) Act 1979 (Cth) (TIA Act).2 The principal question raised by Consultation Paper is whether ASIC should be a ‘recipient agency’ which can receive TI material lawfully obtained by interception agencies and use that material for the purpose of investigating serious Corporations Act 2001 (Cth) (the Corporations Act) offences and other ‘serious’ or ‘relevant’ offences.

The term ‘recipient agency’ is not currently used in the TIA Act, although the Law Council understands that it is intended to encompass agencies in section 68 of the TIA Act. Section 68 generally enables the chief officer of an interception agency to communicate to prescribed agencies lawfully intercepted information that was originally obtained by the originating agency or interception warrant information if the information relates, or appears to, relate to a matter that may give rise to an investigation by the prescribed agency. Currently, ‘recipient agencies’ include for example agencies such as core law enforcement and anti-corruption bodies or foreign countrijes with the consent of the Attorney-General.

Effective co-operation and appropriately defined information sharing between agencies is critical given the national and global nature of many serious and organised crime and national security investigations. However, information sharing in combating crime and security risks must always be balanced with protecting the right to privacy.

Telecommunication interception powers necessarily intrude on the privacy of individuals. Any legislative expansion of the powers needs to be demonstrated to be necessary and proportionate to the seriousness of the misconduct sought to be addressed.

The Law Council’s primary recommendation is that there be an independent review, or as a minimum, a review by the Attorney-General’s Department (the Department), of the operation and effectiveness of the information sharing provisions in the TIA Act. One of the objectives of the review should be to establish a principled framework for determining which agencies should be able to receive, use or disclose TI material for the purpose of their own investigations. ASIC’s access to TI material should be considered as part of the broader information sharing provisions review.

You can read the full submission below.

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