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Someone else might be listening

By George Williams and David Hume - posted Wednesday, 29 March 2006

Federal Parliament is to debate a law this week that conjures up modern-day images of Big Brother. The Bill will allow the government to read our private emails, SMSs and other stored communications, without our knowledge.

The power will extend even to innocent people, called B-parties, if they have been unlucky enough to communicate with someone who is suspected of a crime or of being a threat to national security. The government should sometimes be able to monitor the communications of innocent people.

This may be necessary to protect the wider community, where a suspect can only be tracked down through another person. However, the Bill goes far beyond what can be justified and undermines our right to privacy more than is needed to properly enforce the law.


Our key concerns are that, first, the government will be able to collect not only the communications between the B-party and the suspect, but also communications between the B-party and anyone else.

These conversations might be with family members, friends, work colleagues, your lawyer, your doctor and so on, no matter what you spoke about. Your most private and intimate conversations could be poured over, without your knowledge, by people you have never met.

Second, in some circumstances the government can use the information it collects even though that information is irrelevant to the original suspect. For example, if the government uncovers incriminating information from listening to a B-party's conversations, this can set off a chain reaction, allowing the interception of the incriminated person's communications or of anyone with whom they communicate.

The government could use this information to initiate a prosecution, even if it relates only to a minor offence.

Third, the Bill sets a very low threshold for ASIO to be granted a warrant. As long as ASIO has tried other means of tracking a suspect, it only needs to show that intercepting the B-party's communications is likely to assist in obtaining intelligence related to security. This is a very wide power, particularly since, once ASIO meets the threshold, it can intercept any communications to or from the B-party.

Fourth, the threshold that ASIO must satisfy uses general terms, such as “likely to assist” and “relating to security”. This vagueness creates the potential for government agencies to misuse the power or apply it in an arbitrary fashion.


This arbitrariness extends to another aspect of the Bill. It differentiates between stored communications, such as email and SMS, and real-time communications, such as telephone conversations. Under the Bill, it is much easier to access stored communications, apparently because SMS and email are thought to be less private than telephone conversations.

However, now that telephone conversations often take place in public on mobile phones, many people, and particularly young people, reserve their most personal interactions for email and SMS.

These problems have been compounded by the speed with which the government has sought to push the Bill through parliament. Interested parties were given only 10 days to prepare submissions on the 90-page Bill. The senate committee responsible for reviewing it has only two weeks to review the submissions, hear evidence and prepare a report.

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First published in the Herald-Sun on March 23, 2006.

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About the Authors

George Williams is the Anthony Mason Professor of law and Foundation Director of the Gilbert + Tobin Centre of Public Law at the University of New South Wales.

David Hume is currently an intern at the Gilbert + Tobin Centre of Public Law, completing his final year of an Arts(Hons)/LLB at the University of New South Wales. In 2007, he will work as the Associate to Chief Justice Murray Gleeson. Previously, he has been awarded the UNSW University Medal in Philosophy and has been the President of the University Union.

Other articles by these Authors

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