As I've alluded to, the element of this that pertains to privacy is the incorporation into the Australian Constitution of Council fiduciary compliance. It has been law since 2007 in Australia that in any question impacting the federal taxing power authority conferred by the constitution, such queries can be made as a matter if course, as long as permission is obtained from a single signing supervisor.
I apologise because I'm probably missing something, but I don't understand how the amendment affects the gathering of metadata in any way.
The explanatory memorandum seems to make it pretty clear that the Commonwealth isn't going to rely on the amendment to interfere with local bodies and I think reliance on a council worker's signature as authority to gather data for the Commonwealth would almost absolutely be a violation of the separation of powers doctrine anyway.
Our government can already arguably take what they want anyway under ss51(vi) or (xxix), so I don't really see why an ulterior motive for this is necessary anyway.
Also, I was under the impression that the funding would be grants, so I don't get why you're saying fiduciary relationships are involved here.
I haven't studied constitutional law for a couple of years now so I'm probably behind on bits and pieces, but I'm not getting any warning signs from this referendum at all. It just seems like it's an attempt to cut down on bureaucracy.
(IANAL by the way. Or an exceptionally good law student, so I'm sorry if I've misunderstood everything here)
Can you put some of that in plain English, and provide some references please?
It has been law since 2007 in Australia that in any question impacting the federal taxing power authority conferred by the constitution, such queries can be made as a matter if course, as long as permission is obtained from a single signing supervisor.
What exactly does "federal taxing power authority" mean, and under what possible interpretation does that mean that a body funded by the federal government suddenly gets the power to subpoena phone records and tap email?
There are plenty of other federally funded bodies at (AFAIK) don't have that power. Or maybe I'm wrong, and agencies like Screen Australia actually can do that?
(Not that I support this referendum, but that's for different reasons)
Protection of the public revenue is the clause in the telecommunications act 1997 that the Australian Tax Office and Job Centre investigators often rely on. Access to metadata does not require a warrant. In some cases, telcos can provide information to allowed agencies even without certification.
I'm fairly convinced that local governments will be motivated to protect their own revenue with methods that are specifically designed to protect the public revenue. Already we are seeing some councils using these methods. The number of accesses must be reported, and these reports form the basis of recent news stories on this subject. It remains to be seen whether there are any real constraints on the volume of queries when and if local governments are directly funded by the federal government.
By federal taxing powers I mean what is generally described in [1]
There is history in the relationship between the Federal and local governments. Reference the Whitlam governments attempt at bringing local government under federal control, which failed, and the Fraser government etc [2]
The COAG meetings provide the mechanism for state funding, through which local councils currently are funded. There is one local government representative present at COAG meetings [3][4]
Part 13 of the Telecommunications Act and access to metadata.[5].
The amendments relevant to warrants for access to content of stored electronic communications and the Telecommunications (Interception) Amendment Act 2006 are in [6]
I still don't really get what you're trying to say. Mentioning that a power is contained within a clause of the Telecommunications Act doesn't really mean much. All 594 subsections need to be read in conjunction with each other before an accurate interpretation can be made. I've had a quick read through and I can't really see how a broad enough construal of Part 13 is possible for anything you're saying to happen. It's going to turn on whether the government believes whether the High Court will interpret what you're describing as 'reasonable' even though the Act repeatedly emphasises that confidentiality should be paramount. We've got some silly people in power but they're not that dumb.
I do not understand how councils are not already part of the 'public revenue', maybe there is case law on this that I am unaware of?
The explanatory memorandum attached to the referendum explicitly states that the Federal government will have no legal influence over local councils. It also mentions that the referendum is for no other purpose than to grant the council money. As soon as any evidence of what you've described crops up they're going to get their asses handed to them in court as they're acting against their own explicit intention. I can't see the loophole you do at all.
I've spent the last 25 minutes or so going through the Telecommunications Act and it is an absolute shambles when read in context. As I said in another post, there are far simpler ways for the Commonwealth to claim a legal right to monitor us.
If the Australian government wanted to monitor our metadata, or conduct any other sort of surveillance for that matter, they'd probably just do it and then claim external affairs once they're caught. It's far simpler and more effective than to try to engineer a legal loophole like you're describing. It's cynical and it sucks but that's the way these things tend to go.
Councils already access metadata in accordance with the Telecommunications Act.[1]
I provided the links to the amended Telecommunications ( Interception ) Act 2006 as it describes the warrant system required for stored data or content. Not data in transit.
Those agencies that have a more direct linkage to federal funding, for example, the ATO on the input side, and Social Security, for example, Jobcentres on the output side, are those bodies that probe metadata the most it would appear, under the provisions in the Act regarding defrauding the public finances without suspicion of criminality or otherwise, though such a suspicion is in itself also a justification.
While the funding provided to local councils via the states is also public funding, direct funding by the Commonwealth has as its aim efficiency of course, but also control and competitive negotiation between councils. The single representative present at the COAG meetings can only be partly effective at representation given the competition between the states. One size doesn't fit all, and there is a case to be made for greater efficiencies by having direct negotiation with the Commonwealth, and for greater formalisation over things like standards of delivery and varieties of services.
With these advantages also comes responsibility, in things like reporting and budget control. Just as happens with the states that have an interest in maximising funding, and where effectively punitive financial penalties are extracted in future COGM rounds because of either malperformance or political difference, I contend that the pressure upon councils to protect their funding will only increase, as it has with the states, which face competitive constraints. Some will win and some will lose, but maintaining maximum levels is something that we expect in any case.
This is a significant constitutional change I think. Local councils, when directly accountable to the Commonwealth, and as providers of services financed from general Commonwealth revenue, will I think behave more broadly alike in their attitude to income and expenditure, and use the methods already allowed them, and already employed by certain other councils. The linkage between council revenues and the revenues considered exactly in the Telecommunications Act are more direct perceptually.
I think Australians should be cautious about this, and so do some of Australia's politicians as well. [2]
http://www.gtcentre.unsw.edu.au/resources/referendums/2013-l...
http://www.councilreferendum.com.au/
http://www.aph.gov.au/About_Parliament/House_of_Representati...
As I've alluded to, the element of this that pertains to privacy is the incorporation into the Australian Constitution of Council fiduciary compliance. It has been law since 2007 in Australia that in any question impacting the federal taxing power authority conferred by the constitution, such queries can be made as a matter if course, as long as permission is obtained from a single signing supervisor.