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2002 -
2003
THE PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
HOUSE OF
REPRESENTATIVES
TELECOMMUNICATIONS INTERCEPTION AND
OTHER
LEGISLATION AMENDMENT BILL
2003
EXPLANATORY
MEMORANDUM
(Circulated by
authority of the Attorney-General,
the Honourable Daryl Williams AM QC
MP)
TELECOMMUNICATIONS INTERCEPTION AND OTHER
LEGISLATION AMENDMENT BILL 2003
OUTLINE
This Bill amends the Telecommunications
(Interception) Act 1979, the Financial Transaction Reports Act 1988
and the Crimes Act 1914 to provide the proposed new Western Australian
Corruption and Crime Commission (the Commission) with relevant law enforcement
powers to perform its functions, consistent with the powers available to the
body that it will replace, the Western Australian Anti-Corruption Commission.
Specifically, the Bill amends the Telecommunications (Interception)
Act 1979 to include the proposed Commission and proposed Parliamentary
Inspector of the Corruption and Crime Commission as eligible authorities for the
purposes of that Act. This will have the effect of enabling both the Commission
and the Parliamentary Inspector to receive intercepted information relevant to
the performance of their functions from intercepting agencies. In addition, the
amendments will enable the Commission to be declared to be an intercepting
agency in its own right allowing it to obtain and execute telecommunications
interception warrants subject to fulfilment of specified
preconditions.
The Bill amends the Financial Transaction Reports Act
1988 to give the Commission access to financial transaction reports
information by including the Commission within the meaning of law enforcement
agency for the purposes of such access.
The Bill amends the Crimes
Act 1914 to enable the Commission to authorise a person to acquire and use
evidence of an assumed identity by including the Commission as a participating
agency for the purposes of the assumed identities scheme set out in Part IAC of
that Act.
The Bill also amends the Telecommunications (Interception)
Act 1979 to include slavery, sexual servitude, deceptive recruiting and
aggravated people smuggling offences set out in Division 270 and section 73.2 of
the Criminal Code as offences in relation to which a telecommunications
interception warrant may be sought. This will enable telecommunications
interception warrants to be sought in connection with the investigation of these
offences.
FINANCIAL IMPACT STATEMENT
There are no
direct financial impacts from this Bill.
Clause 1: Short Title
Clause 1 is a formal provision
specifying the short title of the Act.
Clause 2:
Commencement
Clause 2 sets out a table specifying the times at which
the various parts of the Bill commence. The table specifies that the formal
provisions set out in clauses 1 to 3 of the Bill commence on the day on which
the Act receives Royal Assent.
The clause further provides that Schedule
1 to the Bill commences on a date to be fixed by Proclamation and, in default of
proclamation within 12 months of the day on which the Act receives Royal Assent,
that the provisions in the Bill are automatically repealed.
Schedule 1
to the Bill contains amendments to include reference to the proposed Western
Australian Corruption and Crime Commission in the Financial Transaction
Reports Act 1988, the Crimes Act 1914 and, in the case of the
Telecommunications (Interception) Act 1979, reference to both the
Commission and the proposed Parliamentary Inspector of the Corruption and Crime
Commission. Both the Commission and the office of the Parliamentary Inspector
are proposed to be established by the State of Western Australia in legislation
currently before the Western Australian legislature.
Commencement of
the amendments in Schedule 1 by proclamation will ensure that those provisions
providing for the Commission and Parliamentary Inspector do not commence until
those entities are formally constituted and, in the event that those bodies are
not formally created within 12 months after Royal Assent to the Act, that those
provisions are automatically repealed. Provision for repeal after 12 months is
considered appropriate to accommodate further consideration of the relevant
legislation by the Western Australian Parliament.
The Clause further
provides that Schedule 2 to the Bill, which has the effect of enabling
telecommunications interception warrants to be sought in connection with the
investigation of slavery, sexual servitude, deceptive recruiting and aggravated
people smuggling offences set out in Division 270 and section 73.2 respectively
of the Criminal Code, commences on the day on which the Act receives
Royal Assent.
Clause 3: Schedules
Clause 3
provides that each Act specified in a schedule is amended as set out in the
schedule concerned.
Schedule 1 – Amendments relating to the Western Australian Corruption and Crime Commission
Crimes Act 1914
Item 1
This item amends the definition of State or Territory
participating agency in subsection 15XA(1) of the Crimes Act 1914 to
include a reference to the Western Australian Corruption and Crime Commission
(the Commission). The effect of the amendment is to enable authorised officers
of the Commission to authorise persons to acquire and use evidence of an assumed
identity, in accordance with the assumed identities scheme set out in the Act.
Financial Transaction Reports Act 1988
Item 2
This item amends subsection 27(16) of the Financial Transaction Reports Act 1988 by adding a new paragraph setting out a reference to the Commission. The effect of the amendment is to include the Commission as a law enforcement agency for the purpose of section 27 of that Act, which makes provision for access by specified persons and agencies to financial transaction reports information.
Item 3
This item amends subsection 27(17) of the Financial Transaction Reports Act 1988 by adding a new paragraph setting out a reference to an officer of the Commission. The effect of the amendment is to include persons falling within the definition of an officer of the Commission, as set out in the Corruption and Crime Commission Act 2003 of Western Australia, within the meaning of a law enforcement officer for the purposes of section 27 of that Act, which makes provision for access by specified persons and agencies to financial transaction reports information. The amendment will enable the Commissioner and staff of the Commission to have access to financial transaction reports information in accordance with the provisions set out in that Act.
Telecommunications (Interception) Act 1979
Item 4
This item amends the definition of certifying officer set
out in subsection 5(1) of the Telecommunications (Interception) Act 1979
(the Act) to include a new paragraph setting out a definition of the term in
the case of the Commission.
New paragraph (i) provides that, in the
case of the Commission, certifying officer means the Commissioner of the
Commission, or an officer of the Commission who occupies a position at an
equivalent level to that of a senior executive officer under the Public
Sector Management Act 1994 (WA) where that officer has been authorised in
writing by the Commissioner to be a certifying officer for the purposes of the
definition. The effect of the amendment to the definition will be to permit
both the Commissioner and senior officers authorised by the Commissioner to
perform the functions conferred upon certifying officers by the Act.
Item 5
This item amends the definition of chief officer set out in
subsection 5(1) of the Act to include new paragraphs setting out a definition of
the term in the case of the Commission and the Parliamentary Inspector to the
Corruption and Crime Commission (the Parliamentary Inspector).
In the
case of the Commission, the chief officer is defined as the Commissioner and, in
the case of the Parliamentary Inspector, the chief officer is defined as the
Parliamentary Inspector personally. The effect of the amendment to the
definition will be to confer upon the respective holders of these offices the
functions and duties imposed upon the chief officers of eligible
authorities.
Item 6
This item amends subsection 5(1) of the Act to define the
term Corruption and Crime Commission as the Corruption and Crime Commission
established under the Corruption and Crime Commission Act. A definition of
Corruption and Crime Commission Act is included by the amendment at item 7. The
effect of the amendment is to clearly define the shorthand description of the
Commission to be used throughout the Act.
Item 7
This item amends subsection 5(1) of the Act to define the
term Corruption and Crime Commission Act as the Corruption and Crime
Commission Act 2003 of Western Australia. The effect of the
amendment is to clearly define the shorthand description of the Act establishing
and conferring functions upon both the Commission and Parliamentary Inspector to
be used throughout the Act.
Item 8
This item amends paragraph (d) of the definition of eligible
authority set out in subsection 5(1) of the Act to include a reference to both
the Commission and the Parliamentary Inspector. The effect of the amendment is
to permit both the Commission and the Parliamentary Inspector to receive
intercepted information in certain circumstances.
In addition, section
34 of the Act sets out process whereby, subject to satisfactory compliance with
certain preconditions set in section 35, an eligible authority may be declared
to be an agency for the purposes of the Act, allowing it to seek and execute
telecommunications interception warrants in its own right. In this manner the
Commission may, subject to satisfaction of the specified preconditions, be
declared an agency in the same way as the body it will replace, the
Anti-Corruption Commission. It is not however anticipated that the
Parliamentary Inspector be declared to be an intercepting agency in its own
right, but rather that it receive intercepted information in connection with its
functions in relation to misconduct. Accordingly, a number provisions in the
Act that are only relevant in the case of an eligible authority that has become
an agency have not been amended to accommodate the Parliamentary Inspector.
Item 9
This item amends the definition of officer set out in
subsection 5(1) of the Act to include new paragraphs setting out a definition of
the term in the case of the Commission and the Parliamentary
Inspector.
In the case of the Commission, an officer is defined as an
officer of the Commission and, in the case of the Parliamentary Inspector, an
officer is defined as the Parliamentary Inspector or an officer of the
Parliamentary Inspector. The terms officer of the Commission and officer of the
Parliamentary Inspector are separately defined by the amendments at items 10 and
11, which pick up the definitions of those terms as set out in the Corruption
and Crime Commission Act. In particular, unlike other eligible authorities
under the Act, the definition of officer in the case of the Commission inserted
by this amendment does not separately identify the Commissioner as the
definition of officer of the Commission in the Corruption and Crime Commission
Act, picked up by the amendment at item 10, includes the Commissioner.
Item 10
This item amends subsection 5(1) of the Act to define the
term officer of the Corruption and Crime Commission as an officer of the
Commission within the meaning of the Corruption and Crime Commission Act. The
effect of the amendment is to pick up the meaning of the term officer as set out
in the legislation creating the Commission and clearly define the concept of
officer of the Commission used in item 9 to define officer in the context of
that entity.
Item 11
This item amends subsection 5(1) of the Act to define the
term officer of the Parliamentary Inspector as an officer of the Parliamentary
Inspector within the meaning of the Corruption and Crime Commission Act. The
effect of the amendment is to pick up the meaning of the term officer as set out
in the legislation establishing the office of the Parliamentary Inspector and
thereby clearly define the concept of officer of the Parliamentary Inspector
used in item 9 to define officer in the context of that entity.
Item 12
This item amends subsection 5(1) of the Act to define the
term Parliamentary Inspector of the Corruption and Crime Commission as the
Parliamentary Inspector within the meaning of the Corruption and Crime
Commission Act. The effect of the amendment is to pick up the meaning of the
term Parliamentary Inspector as set out in the legislation establishing the
office of the Parliamentary Inspector and thereby clearly define the shorthand
description of the Parliamentary Inspector to be used throughout the Act.
Item 13
This item amends the definition of permitted purpose set
out in subsection 5(1) of the Act to include new paragraphs setting out a
definition of the term in the case of the Commission and the Parliamentary
Inspector.
In the case of the Commission, the definition of permitted purpose is expanded to include a purpose connected with an investigation under the Corruption and Crime Commission Act into whether misconduct, as defined in that Act, has or may have occurred, is or may be occurring, is or may be about to occur, or is likely to occur and a report on such an investigation. The description of these permitted purposes of the Commission is consistent with the functions of the Commission in relation to misconduct as set out in the Corruption and Crime Commission Act.
In the case of the Parliamentary Inspector, the definition of permitted purpose is expanded to include a purpose connected with a dealing with a matter of misconduct, as defined in the Corruption and Crime Commission Act, on the part of the Commission, a Commission officer or an officer of the Parliamentary Inspector.
In defining specific permitted purposes for each of the Commission and Parliamentary Inspector, the amendments distinguish between an investigation on the part of the Commission, and dealing with a matter of misconduct on the part of the Parliamentary Inspector. This distinction reflects the different roles and functions of the Commission and Parliamentary Inspector as set out in the Corruption and Crime Commission Act. In particular, unlike the Commission, the Parliamentary Inspector does not have a function of conducting investigations, but rather deals with matters of misconduct.
The extensions to the scope of the term permitted purposes have the effect of making specific provision for both the Commission and the Parliamentary Inspector, enabling those bodies to deal with intercepted information in connection with one of the identified purposes. The extension to permitted purposes supplements the general permitted purposes set out in paragraph (a) of the definition. Those purposes are limited to investigations of specified criminal offences and certain proceedings. The additions to permitted purposes in the context of the Commission and Parliamentary Inspector accommodate those uses of intercepted material which may not be covered by the general definition but are nevertheless appropriate uses of intercepted material in the context of the functions of those bodies. In particular, the roles of both bodies in relation to misconduct extend beyond misconduct amounting to a serious criminal offence. The extension to the definition would permit the Commission and Inspector to use intercepted information in the performance of their respective functions with respect to misconduct.
Item 14
This item amends the definition of prescribed investigation
set out in subsection 5(1) of the Act to include new paragraphs setting out a
definition of the term in the context of the Commission and the Parliamentary
Inspector.
In the case of the Commission, prescribed investigation is
defined to mean an investigation that the Commission is conducting in the
performance of its functions under the Corruption and Crime Commission Act. In
the case of the Parliamentary Inspector, prescribed investigation is defined to
mean a dealing with a matter of misconduct in the performance of the
Inspector’s functions under the Corruption and Crime Commission Act.
In defining a prescribed investigation for each of the Commission and
Parliamentary Inspector, the amendments distinguish between an investigation on
the part of the Commission, and the dealing with a matter of misconduct on the
part of the Parliamentary Inspector. This distinction reflects the
different roles and functions of the Commission and Parliamentary Inspector as
set out in the Corruption and Crime Commission Act. In particular, unlike
the Commission, the Parliamentary Inspector does not have a function of
conducting investigations, but rather deals with matters of misconduct.
The effect of the amendment is to define the term prescribed
investigation in the case of both the Commission and the Parliamentary
Inspector. That concept is relevant in defining the concepts of relevant
offence and relevant proceeding for those bodies, which are in turn central to
the circumstances in which intercepted information may be communicated to and
used by the Commission and Parliamentary Inspector.
Item 15
This item amends the definition of relevant offence set out
in subsection 5(1) of the Act to include new paragraphs setting out a definition
of the term in the context of the Commission and the Parliamentary
Inspector.
In the case of both the Commission and the Parliamentary
Inspector a relevant offence is defined as a prescribed offence that is an
offence against the law of Western Australia and to which a prescribed
investigation relates. The meaning of the term prescribed investigation is
separately amended by item 14 to define the term in the context of the
Commission and Parliamentary Inspector. The scope of the term relevant offence
is important in section 68 of the Act, which defines the circumstances in which
the chief officer of an intercepting agency may communicate intercepted
information to eligible authorities.
Item 16
This item amends the definition of exempt proceeding set
out in section 5B of the Act to include a reference to proceedings of both the
Commission and the Parliamentary Inspector.
This amendment ensures that
lawfully intercepted information can be adduced in evidence in a proceeding of
the Commission or Parliamentary Inspector. The amendment will permit
intercepted information to be adduced in evidence in a hearing by the Commission
or Parliamentary Inspector in the course of performing their statutory
functions.
Item 17
This item amends section 6A of the Act to include new
subparagraphs 6A(1)(c)(x) and (xi). The effect of the amendment is to specify
that, in the case of the Commission and Parliamentary Inspector, a reference in
the Act to the investigation of an offence is a prescribed investigation of that
body in so far as it relates to that offence. The provision is an interpretive
aid and makes clear how references to the investigation of an offence are to be
construed.
Item 18
This item amends the meaning of a reference to a relevant
proceeding set out in section 6L of the Act to include a reference to both the
Commission and the Parliamentary Inspector. The item amends paragraph 6L(2)(d),
which provides that a reference to a relevant proceeding in the case of the
Anti-Corruption Commission and Royal Commission into Police Corruption is a
reference to a prosecution for a prescribed offence against the law of Western
Australia to which a prescribed investigation relates or related, to also
include reference to the Commission and the Parliamentary Inspector.
The
effect of the amendment is to define a relevant proceeding for both the
Commission and the Parliamentary Inspector. That concept is then relevant in
determining the purposes for which the Commission and Parliamentary Inspector
may use intercepted information by virtue of its inclusion in defining permitted
purposes for all agencies.
Item 19
This item amends paragraph 39(2) of the Act to include a
reference to an officer of the Commission. Section 39 of the Act sets out the
range of persons from each intercepting agency who may apply for
telecommunications interception warrants. The effect of the amendment is to
specify that, in the case of the Commission, an officer of the Commission may
apply for warrants. The amendment at item 10 specifies that, for the purposes
of the Act, officer of the Commission has the meaning given in the Corruption
and Crime Commission Act.
Item 20
This item amends section 68 of the Act to insert new
paragraphs (j) and (k). The effect of the amendment is to permit the chief
officer of an agency to communicate lawfully intercepted information originally
obtained by that agency to the Commissioner of the Corruption and Crime
Commission or the Parliamentary Inspector in certain circumstances.
In
the case of the Commission, the amendment will permit any agency which holds
information originally intercepted by that agency and which relates, or appears
to relate, to a matter that may give rise to an investigation by the Commission,
to communicate that information to the Commissioner of the Commission. The
amendment will permit agencies to communicate information to the Commission that
may cause the Commission to initiate an investigation in accordance with its
statutory functions.
In the case of the Parliamentary Inspector, the
amendment will permit any agency which holds information originally intercepted
by that agency and which relates, or appears to relate, to a matter that may
give rise to a dealing by the Parliamentary Inspector with a matter of
misconduct, to communicate that information to the Parliamentary Inspector. The
amendment will permit agencies to communicate information to the Parliamentary
Inspector that may cause the Parliamentary Inspector to inquire into misconduct
in accordance with that office’s statutory functions.
In defining
the circumstances in which intercepted information may be communicated to both
the Commission and the Parliamentary Inspector, the amendments distinguish
between an investigation on the part of the Commission, and the dealing with a
matter of misconduct on the part of the Parliamentary Inspector. This
distinction reflects the different roles and functions of the Commission and
Parliamentary Inspector as set out in the Corruption and Crime Commission
Act. In particular, unlike the Commission, the Parliamentary Inspector
does not have a function of conducting investigations, but rather deals with
matters of misconduct.
Schedule 2 – Amendments relating to offences of people smuggling with exploitation, slavery, sexual servitude and deceptive recruiting
Item 1
This item amends the definition of class 2 offence to include offences against section 73.2 and Division 270 of the Criminal Code. Section 73.2 of the Code provides an aggravated people smuggling offence where the smuggling occurs with the intention that the smuggled person will be exploited after entering the foreign country, where the victim is subjected to cruel, inhuman or degrading treatment or where the conduct in committing the offence gives rise to a danger of death or serious harm to the victim.
The effect of the amendment is to permit agencies to apply for a warrant
authorising the interception of telecommunications where information that may be
obtained would be likely to assist in the investigation of offences of slavery,
sexual servitude, deceptive recruiting and people smuggling with exploitation as
set out in the Criminal Code.