Recommendation 20 of the advisory report by the Australian Parliamentary Joint Committee on Intelligence and Security (tabled 27 February 2015) is that the Australian Securities and Investments Commission (ASIC) be listed as a criminal law-enforcement agencies under proposed section 110A of the Telecommunications (Interception and Access) Act 1979, thereby permitting it to continue to access telecommunications data.
ASIC had fought strongly for this change during the Committee’s inquiry – see, for example, my post “Not happy, Malcolm! ASIC argues for access to telecommunications data.”
During a Committee hearing Mr Greg Tanzer, the Commissioner of ASIC, highlighted the need for reliable access to telecommunications data to combat the increasing global threat of insider trading:
It is not like terrorism, and I do not make a case that it is exactly the same as terrorism. That would be churlish and, frankly, stupid. But insider trading is an especially pernicious activity. If insider trading is permitted to continue, retail investors and institutional investors will lose confidence in the Australian market. Australia is a net importer of capital—a very major net importer of capital—and if foreign investors in particular, let alone Australian investors, lose confidence in our market, we lose this whole engine and multiplier effect that we have through our capital markets for efficient capital raising. … I am not equating this to a terrorist act, but I am equating this somewhat to other crimes which cause physical harm to people. It is very difficult for a person who has lost their life savings to recover, particularly if your are at that part of your life… where you do not have a lot of time to recover a deadweight loss. (Page 35 of Report.)
In its comments the Committee said:
6.42 The Committee recognises the importance of carefully circumscribing the agencies which are designated as ‘criminal law enforcement agencies’ to ensure that only agencies involved in investigating serious contraventions of the law and subject to appropriate safeguards may seek warrants to access stored communications.
6.43 On the evidence provided, the Committee considers that ASIC is an appropriate agency to be a ‘criminal law enforcement agency’. In particular, the Committee notes that ASIC’s functions include investigating serious offences; that access to stored communications is, and will continue to be, of assistance in its investigations of serious offences; and that ASIC is subject to appropriate accountability requirements and safeguards including the Australian Privacy Principles.
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