Limits to the Powers of the Agencies to Collect and Use Location Information

Abstract

In this Chapter, the limits to the powers of the AFP are described and analysed. It critically analyses how the Attorney-General’s Guidelines protect privacy and how privacy is a tool used to limit the powers of ASIO. There are various tests, such as the ‘Privacy Tests’, which includes the ‘Reasonable and Proportionate Privacy Test’, and the ‘Connection Tests’, that the Agencies must follow to collect and use location information, as a limit to their powers. It analyses how the competing privacy and public safety interests are not well balanced, given that personal information itself is the target. Instead of opening up its decision-making to judicial review, the executive arm of government is finding innovative policy strategies to incorporate a traditional administrative law review doctrine—legitimate expectations—into its daily decision-making. The legitimate expectations of the Australian community relating to privacy and cybersecurity must be considered when collecting technical information from the likes of Google and Facebook. This may be a welcome move but has its concerns. This is a move that is based on opinion polling, and that entrusts national security, at least partially to opinion polling. It can be generally positive in protecting privacy better, as it may reflect the views of the public on how to better safeguard privacy. However, the competing concern is the extent to which the agencies intend on being swayed by opinion polls in making law enforcement and national security decisions, given that general public opinion may see certain minority groups as particularly criminal and expect a tougher stance on what may be perceived as crime ridden communities, as it relates to collecting metadata from social media tech giants.