A parliamentary joint committee has recommended that the Australian Taxation Office be granted powers to access stored telecommunications data without a warrant, just months after Parliament passed legislation stripping it of that power.

One of the major sticking points during the debate over the government’s legislation forcing telecommunications companies to keep so-called “metadata” from its customers for two years was that this data could be accessed by a wide variety of Commonwealth, state, and local government agencies without a warrant.

There were a number of reports of Blacktown Council using metadata to track illegal dumping, and the RSPCA in Victoria was a major user of metadata.

The compromise, Attorney-General George Brandis announced when mandating that telcos would have to keep the data for two years, would be that most of these agencies would no longer have access to the data.

“We recognise that the right to privacy and the principle of freedom of the press are fundamental to our democracy. For these reasons, the Bill contains new and strengthened safeguards. These include the provision of new oversight powers to the Commonwealth Ombudsman; a reduction in the number of agencies accessing metadata from over 80 to 21; and specific protections for journalists and their sources,” Brandis said when the legislation passed.

In the legislation passed in March, the government sought to limit access to the data to 21 agencies, including the Australian Federal Police, ASIO, state police agencies, the ACCC, ASIC, and state corruption agencies. However, less than two months later the government added Border Force to the list with another piece of national security legislation.

Now the Australian Taxation Office could be next. In a report tabled yesterday by the Joint Parliamentary Committee of Law Enforcement on financial-related crime, the committee recommended adding the ATO to the list of agencies:

“On balance the committee is persuaded that with appropriate safeguards, including adequate privacy and oversight arrangements, the ATO should be able to access intercepted telecommunications information for the purpose of protecting public finances from serious criminal activities such as major tax fraud. In the committee’s view, the multiple prosecutions and recovery of billions of dollars in tax liabilities resulting from Project Wickenby, clearly establishes the demonstrated need for the ATO to become a criminal law-enforcement agency under the TIA Act,” the committee stated.

“For these reasons the committee remains supportive of inclusion of the ATO as a criminal law-enforcement agency as per the recommendation in its report into unexplained wealth arrangements in Australia.”

The reason why the ATO was excluded from the original list, while ASIC — which infamously accidentally blocked thousands of websites because staff didn’t realise what an IP address does — remains a mystery. The law enforcement committee offered no reasoning as to why the ATO was originally exempt. It noted there was “consistent support” for the ATO to have access to stored telecommunications data.

Unlike the original plan put forward by the government, Parliament will need to pass legislation to add the ATO to the list. Under the original proposal, all that would have been required was approval by the attorney-general of the day. The Greens warned at the time that agencies would quickly be lining up at Brandis’ door seeking to be added to the list.

The government has not yet responded to the recommendations made in the report.

Peter Fray

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Peter Fray
Editor-in-chief of Crikey