4 ms·

There is an upcoming referendum in Australia which seeks to take this level of government into the budget allocation process of the federal system. If this happ

by gregsq 13y ago

There is an upcoming referendum in Australia which seeks to take this level of government into the budget allocation process of the federal system. If this happens, all functions of local government have the characteristic of affecting federal taxing powers. Therefore all actions and provisions by local government will have a characteristic that provides the authority to access metadata for all citizens on the single signature of the enquirers supervisor. The enquirer can be any paid employee of the council who has a working title. Any license, fee, ambiguity on any bylaw compliance, planning decision and so on can, because it has a fiduciary component, lead to a legally performed metadata query on any citizen. And the citizenry I have met are, I am afraid, oblivious to these matters.

jacalata 13y ago
I have literally not heard of a coming referendum at all, although in in the states and not necessarily current. Got any more details?
- gregsq 13y ago
  Sure. Here are some links to follow. http://www.gtcentre.unsw.edu.au/resources/referendums/2013-local-government-referendum-faqs http://www.gtcentre.unsw.edu.au/resources/referendums/2013-l... http://www.councilreferendum.com.au/ http://www.councilreferendum.com.au/ http://www.aph.gov.au/About_Parliament/House_of_Representatives/About_the_House_News/Latest_News/CRLG-11122012 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.
  - nl 13y ago
    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)
    - gregsq 13y ago
      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] 1. http://en.m.wikipedia.org/wiki/Constitutional_basis_of_taxation_in_Australia http://en.m.wikipedia.org/wiki/Constitutional_basis_of_taxat.... 2. http://sydney.edu.au/law/cru/documents/2013/CRU_Report_3_%20Local_Government.pdf http://sydney.edu.au/law/cru/documents/2013/CRU_Report_3_%20... 3. http://www.coag.gov.au/the_federal_financial_relations_framework http://www.coag.gov.au/the_federal_financial_relations_frame... 4. http://www.coag.gov.au/reform_agenda http://www.coag.gov.au/reform_agenda 5. http://www.pacificprivacy.com.au/Government%20Surveillance%20in%20Australia%20v6.pdf http://www.pacificprivacy.com.au/Government%20Surveillance%2... 6. http://www.comlaw.gov.au/Details/C2006A00040/3bf9cedc-87c1-4c8c-895a-83cf7831b278 http://www.comlaw.gov.au/Details/C2006A00040/3bf9cedc-87c1-4...
      - vicbrooker 13y ago
        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.
  - vicbrooker 13y ago
    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)

by gregsq 13y ago

jacalata 13y ago

I have literally not heard of a coming referendum at all, although in in the states and not necessarily current. Got any more details?

gregsq 13y ago
Sure. Here are some links to follow. http://www.gtcentre.unsw.edu.au/resources/referendums/2013-local-government-referendum-faqs http://www.gtcentre.unsw.edu.au/resources/referendums/2013-l... http://www.councilreferendum.com.au/ http://www.councilreferendum.com.au/ http://www.aph.gov.au/About_Parliament/House_of_Representatives/About_the_House_News/Latest_News/CRLG-11122012 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.
- nl 13y ago
  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)
  - gregsq 13y ago
    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] 1. http://en.m.wikipedia.org/wiki/Constitutional_basis_of_taxation_in_Australia http://en.m.wikipedia.org/wiki/Constitutional_basis_of_taxat.... 2. http://sydney.edu.au/law/cru/documents/2013/CRU_Report_3_%20Local_Government.pdf http://sydney.edu.au/law/cru/documents/2013/CRU_Report_3_%20... 3. http://www.coag.gov.au/the_federal_financial_relations_framework http://www.coag.gov.au/the_federal_financial_relations_frame... 4. http://www.coag.gov.au/reform_agenda http://www.coag.gov.au/reform_agenda 5. http://www.pacificprivacy.com.au/Government%20Surveillance%20in%20Australia%20v6.pdf http://www.pacificprivacy.com.au/Government%20Surveillance%2... 6. http://www.comlaw.gov.au/Details/C2006A00040/3bf9cedc-87c1-4c8c-895a-83cf7831b278 http://www.comlaw.gov.au/Details/C2006A00040/3bf9cedc-87c1-4...
    - vicbrooker 13y ago
      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.
- vicbrooker 13y ago
  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)