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2008
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
TELECOMMUNICATIONS INTERCEPTION LEGISLATION AMENDMENT BILL (NO. 2) 2008
EXPLANATORY MEMORANDUM
(Circulated by authority of the Attorney-General,
the Honourable Robert McClelland MP)
TELECOMMUNICATIONS INTERCEPTION LEGISLATION AMENDMENT BILL (NO. 2) 2008
OUTLINE
1. This Bill will amend the Telecommunications (Interception and Access)
Act 1979 (the TIA Act) to introduce the Queensland Public Interest
Monitor (the PIM) into the interception regime. This will enable the
State of Queensland to legislate for the PIM to be given specific
oversight functions for the Queensland Police Service and the Queensland
Crime and Misconduct Commission and allow for those agencies to be
declared interception agencies under section 34 of the TIA Act.
2. Under section 35 of the TIA Act, an agency cannot be declared an
interception agency unless the Minister is satisfied that the law of the
requesting State makes satisfactory provision for the declared agency to
comply with specified recordkeeping, reporting and inspection obligations
and that the State has entered into an agreement to pay all expenses
connected with the issue of warrants issued to the agency.
3. While the TIA Act provides a national regime for telecommunications
interception, this Bill will amend the TIA Act in relation to Queensland
agencies to recognise the unique oversight role the PIM plays in law
enforcement matters in Queensland. Currently the PIM plays an oversight
role in relation to applications for control orders under Division 104 of
the Criminal Code Act 1995, and applications for warrants including
surveillance and covert search warrants under the Crime and Misconduct
Act 2001 (Qld), and the Police Powers and Responsibilities Act 2000
(Qld).
4. The amendments will allow the PIM to make submissions to the eligible
Judge or nominated Administrative Appeals Tribunal (AAT) member
considering the application for an interception warrant and to ask
questions of an officer representing the Queensland agency applying for
the warrant or any other party required to give further information on
the application. These provisions will only operate where the applicant
is representing a declared Queensland agency. The PIM's power to make
submissions will be complemented by a requirement on the decision-maker
considering an application by a Queensland agency, to consider the PIM's
view in deciding whether or not to issue an interception warrant.
5. To minimise the risk of conflict of interest, the Bill will require that
a person who is involved in making submissions or asking questions in
relation to an application must not be involved in the subsequent
inspections of these records.
6. The Bill also specifies that the TIA Act does not affect the operation
of Queensland law to the extent that it may authorise or require
Queensland agencies to notify the PIM of either a proposed or actual
interception warrant application, notify the PIM of any information that
may relate to such applications and provide documentation that may relate
to such applications.
7. The Bill will also make minor and technical amendments to:
- correct an error introduced by the Telecommunications Interception
Legislation Amendment Act 2008 that unintentionally limited a
Police Force of a State's delegation powers in relation to a
'certifying officer' as defined by the TIA Act, and
- amend the definition of 'certifying officer' in subsection 5(1) of
the TIA Act and the definition of 'appropriate authorising officer'
in paragraph 6(1)(g) of the Surveillance Devices Act 2004 to
reflect changes to the structure of the Queensland Crime and
Misconduct Commission.
FINANCIAL IMPACT STATEMENT
These measures will have no financial impact until the Minister makes a
declaration under section 34 of the TIA Act declaring eligible Queensland
authorities to be an agency for the purposes of the TIA Act. Once this has
occurred and Queensland agencies start applying for interception warrants
there will be an ongoing financial impact. This will include a financial
impact on the Federal and Family Courts and the Administrative Appeals
Tribunal in regard to interception warrant applications made by declared
Queensland agencies.
NOTES ON CLAUSES
Clause 1 Short title
Clause 1 is a formal provision specifying the short title of the Bill. It
provides that the Act may be cited as the Telecommunications Interception
Legislation Amendment Act (No. 2) 2008.
Clause 2 Commencement
This clause provides for the commencement of the Bill.
Sections 1 to 3 will commence on the day on which this Act receives the
Royal Assent.
Schedule 1 will commence on the later of:
(a) the day this Act receives the Royal Assent; and
(b) the commencement of the Telecommunications Interception Act 2009 of
Queensland.
However, Schedule 1 will not commence at all if the Telecommunications
Interception Act 2009 of Queensland does not commence.
Schedule 2 will commence on the day after this Act receives the Royal
Assent.
Clause 3 Schedule(s)
Clause 3 provides that each Act that is specified in a Schedule is amended
or repealed as set out in the applicable items in the Schedule concerned,
and any other item in a Schedule to this Act has effect according to its
terms.
Schedule 1 - Public Interest Monitor of Queensland
Telecommunications (Interception and Access) Act 1979
Item 1 - Subsection 5(1)
Item 1 inserts a new definition of 'deputy PIM' into subsection 5(1) of the
TIA Act. Deputy PIM is defined to mean a deputy public interest monitor
appointed under either or both of the Crime and Misconduct Act 2001 (Qld)
and the Police Powers and Responsibilities Act 2000 (Qld).
Item 2 - Subsection 5(1)
Item 2 inserts a new definition of 'PIM' into subsection 5(1) of the TIA
Act. PIM is defined to mean a public interest monitor appointed under
either or both of the Crime and Misconduct Act 2001 (Qld) and the Police
Powers and Responsibilities Act 2000 (Qld).
Item 3 - After paragraph 35(1)(h)
Section 35 of the TIA Act sets out the conditions State law must meet
before the Minister can declare an eligible State authority to be an
interception agency under section 34 of the TIA Act. Paragraph 35(1)(h) of
the TIA Act requires regular inspections of an eligible authority's
records.
Item 3 inserts new paragraph 35(1)(ha) of the TIA Act to specify a new
condition which requires that a person who performs or exercises a power
set out in section 45 of the TIA Act must not undertake an inspection
function in relation to any records that relate to the application. This
will ensure that the same person cannot be involved in both the application
process for an interception warrant and the subsequent inspection in
relation to that warrant. This is to minimise any risk of conflict of
interest.
Item 4 - At the end of Division 3 of Part 2-5 of Chapter 2
Division 3 of Part 2-5 of Chapter 2 of the TIA Act deals with applications
for interception warrants authorising agencies to intercept
telecommunications. Section 39 of the TIA Act sets out the conditions
according to which an eligible agency may apply for an interception
warrant.
Item 4 inserts new sections 45 and 45A at the end of Division 3 of Part 2-5
of Chapter 2.
New section 45 specifies additional conditions which only apply if a
Queensland interception agency applies to an eligible Judge or nominated
AAT member for an interception warrant under section 39 of the TIA Act. In
recognition of the oversight role the PIM plays in law enforcement matters
in Queensland, new section 45 permits the PIM to be present when a declared
Queensland interception agency applies for an interception warrant and make
oral or written submissions to the Judge or nominated AAT member about
certain matters in relation to the application. The PIM can also question
the applicant, or any other person who is required to give further
information in connection with the application, in the presence of the
eligible Judge or nominated AAT member for the purpose of making a
submission.
New section 45 also enables the PIM to delegate his or her powers under
section 45 of the TIA Act to a deputy PIM, to be present at the time an
interception warrant application is made, question persons and make
submissions. The deputy PIM must comply with any directions made by the
PIM in exercising powers under a delegation.
New section 45A clarifies that the TIA Act is not intended to affect the
operation of Queensland law which authorises or requires the PIM to be
provided with certain notification, information or documentation in
relation to a proposed, or actual, interception warrant application. This
provision preserves the validity of any Queensland law that requires
Queensland interception agencies to notify the PIM of an intention to apply
for an interception warrant and to provide relevant information, or which
requires Queensland interception agencies to notify the PIM that an actual
application will be made and to provide the PIM with relevant information.
Item 5 - At the end of paragraphs 46(2)(a) to (d)
Subsections 46(2) and 46A(2) of the TIA Act set out an exhaustive list of
matters an issuing authority must have regard to when considering whether
to issue a warrant.
Item 5 inserts the word 'and' after each paragraph to ensure that each
requirement is read inclusively.
Item 6 - At the end of paragraphs 46(2) and 46A(2)
Item 6 inserts new paragraph (g) after subsections 46(2) and 46A(2). This
new paragraph will require the eligible Judge or nominated AAT member
considering an application for a warrant by a Queensland interception
agency to also have regard to any submission made by the PIM in relation to
the application.
Schedule 2 - Other amendments
Surveillance Devices Act 2004
Item 1 - Subsection 6(1) (paragraph (g) of the definition of appropriate
authorising officer)
Subsection 6(1) of the Surveillance Devices Act 2004 is the interpretation
section of that Act. The definition of 'appropriate authorising officer'
in subsection 6(1) refers to persons who are authorised in writing by a
designated officeholder to perform certain functions on their behalf under
that Act.
Item 1 replaces paragraph 6(1)(g) to amend the definition of 'appropriate
authorising officer' to reflect changes to the structure of the Queensland
Crime and Misconduct Commission.
Telecommunications (Interception and Access) Act 1979
Item 2 - Subsection 5(1) (paragraph (f) of the definition of certifying
officer)
The definition of 'certifying officer' in paragraph 5(1)(f) of the TIA Act
refers to persons who are authorised in writing by a designated
officeholder to perform certain functions on their behalf. Item 2 replaces
paragraph 5(1)(f) to amend the definition of 'certifying officer' to
reflect changes to the structure of the Queensland Crime and Misconduct
Commission.
Items 3 and 4 - Subsection 5AC(4)
Section 5AC of the Act expressly confers power on designated officers to
authorise other persons to act on their behalf as a 'certifying officer'
for the purposes of the TIA Act. Due to a drafting error, the effect of
subsection 5AC(4) of the TIA Act is that the Commissioner of a State police
force can only authorise certain members of the Australian Federal Police
to be a 'certifying officer'.
Item 3 amends subsection 5AC(4) of the TIA Act to clarify that the
Commissioner of a State police force can authorise a State police force
officer whose rank is equivalent to that of a senior executive Australian
Federal Police employee who is a member of the Australian Federal Police to
be a 'certifying officer' for the purposes of the TIA Act.
Item 4 preserves existing authorisations until revoked and ensures the
validity of actions previously taken by persons authorised to act as a
'certifying officer' under subsection 5AC(4) of the TIA Act as the
provision existed before the commencement of this Bill. This item treats
previous authorisations as if they had been made under subsection 5AC(4) of
the TIA Act as amended by Item 3 of this Bill.