Australia's top intelligence and security watchdogs have never asked to look at the plans that telephone and internet providers must have in place for intercepting Australians' phone calls and emails at the direction of security and law enforcement agencies.
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This omission in security and intelligence oversight has been revealed by the Attorney-General's Department in response to questioning by independent senator Nick Xenophon at a recent Senate estimates committee hearing.
Telephone interception is carried out in great secrecy, and scrutiny and oversight by independent bodies has been presented by Australian governments as the primary means of ensuring the privacy and liberties of law-abiding citizens are not infringed.
All of Australia's 170 telecommunications and internet service companies are required by law to lodge with the federal government an “interception capability plan” that sets out the arrangements, systems and facilities they use to intercept telephone calls and internet traffic for the Australian Security Intelligence Organisation (ASIO) and law enforcement agencies.
In answer to questions first asked by Senator Xenophon in February, Attorney-General's Department secretary Roger Wilkins and the department's telecommunications and surveillance law chief, Catherine Smith, have revealed that Australia's national security watchdogs, the Parliamentary Joint Committee on Intelligence and Security (PJCIS) and the Inspector-General of Intelligence and Security (IGIS), Dr Vivienne Thom, have never asked to see or review any interception capability plans.
The Attorney-General's Department has now further advised the Senate that interception capability plans are highly confidential and are not disclosed by the department or ASIO to other government agencies including the PJCIS or IGIS.
According to the department this secrecy “reflects the sensitivity of the information … from a commercial, law enforcement and national security perspective”.
The department added that if they did receive a request from the PJCIS or IGIS for an interception capability plan, they would have to seek written approval from the relevant telecommunications company to provide copies.
Although the PJCIS conducted a major inquiry in 2013 into telecommunications interception, including controversial proposals for mandatory data retention, the committee did not seek access to any interception capability plans.
Dr Thom said that in overseeing ASIO and Australia's five other intelligence agencies, she has “strong investigative powers, akin to those of a royal commission, including the power to compel persons to answer questions and produce documents”.
She said she was confident she has a “sufficient legal basis” to obtain an interception capability plan if she determined it was relevant to an IGIS investigation.
However, Dr Thom did not take issue with the Attorney-General's Department's advice that she and her predecessors had never sought access to such information.
Senator Xenophon expressed strong concern at the apparent absence of scrutiny, saying “if there's one thing worse than a watchdog that doesn't have the powers to undertake its duties, it's a watchdog that doesn't exercise its powers”.
Fairfax Media revealed in December that Telstra had installed "vacuum cleaner-like" technology supplied by US company Gigamon to help it record and sift through a “full take” of telephone calls, texts, social media and internet metadata.
The most recent published statistics show a total of 4839 telecommunications interception warrants were issued to law enforcement agencies in 2012-13, a rise of nearly 16 per cent in two years.
Federal and state law enforcement and other agencies also accessed private telecommunications and internet data 330,640 times in 2012-13 - an 11 per cent increase in a year and a jump of 31 per cent over two years.
Telecommunications data available to government agencies without warrant include phone and internet subscriber and account information; outwards and inwards call details; the origin, destination and time of emails sent; and received phone and internet access location data.
Statistics on ASIO's telecommunications interception and data access are not published.
PJCIS's chairman, Victorian Liberal MP Dan Tehan, did not return calls from Fairfax Media.
