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1998/1999/2000/2001
THE
PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF
REPRESENTATIVES
TELECOMMUNICATIONS INTERCEPTION
LEGISLATION AMENDMENT
BILL
2001
EXPLANATORY
MEMORANDUM
(Circulated by
authority of the Attorney-General,
the Honourable Daryl Williams AM QC
MP)
TELECOMMUNICATIONS INTERCEPTION LEGISLATION
AMENDMENT BILL 2000
OUTLINE
This Bill amends the Telecommunications
(Interception) Act 1979 to:
• include child pornography related and serious arson offences as
offences in relation to which a telecommunications interception warrant may be
sought;
• extend the purposes for which lawfully obtained information
may be communicated and used to include cases where the intercepted information
relates or appears to relate to an act or omission by a police officer that may
give rise to the making of a decision by the relevant Commissioner to dismiss
that officer;
• extend the purposes for which lawfully obtained
information may be used to include purposes connected with the investigation of
serious improper conduct by the Anti-Corruption Commission of Western Australia;
• correct a number of unforeseen consequences of the
Telecommunications (Interception) Legislation Amendment Act 2000;
• clarify the operation of warrants authorising entry onto premises
issued under section 48; and
• effect a number of minor corrections to
the Act, including amending definitions, headings and references to State
legislation.
The Bill also amends the Customs Act 1901 to enable
Federal Magistrates to be nominated to be judges for the purposes of the
listening device provisions of the Act, consistent with the position under the
Telecommunications (Interception) Act 1979 and Australian Federal
Police Act 1979.
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 provides that, with the exceptions of items 16,
22 , 26, 30 and 32, the Act is to commence on the day on which the Act receives
Royal Assent.
The clause further provides that items 16, 22, 26, 30 and
32 are taken to have commenced on 22 June 2000. The amendments made by those
items correct errors made in the Telecommunications (Interception)
Legislation Amendment Act 2000 (the Amendment Act). The retrospective
commencement of the items specified in clause 2 ensures that the amendments
apply from the time at which the Amendment Act came into effect. The amendments
accordingly ensure that validity of action taken in relation to section 48
warrants notwithstanding a failure to comply with a technical requirement
erroneously imposed by the Amendment Act. The amendments will not have any
adverse effect on any person.
Clause 3:
Schedules
Clause 3 provides that each Act specified in a schedule is
amended as set out in the schedule concerned.
Schedule 1 – Miscellaneous Amendments
Item 1
This item amends the definition of Judge in subsection
219A(1) of the Customs Act 1901 consequential on the proposed amendment
at item 2.
Item 2
This item amends subsection 219AA(1) to provide that a Judge
of a court created by the Parliament may consent to be nominated for the
purposes of issuing listening device warrants under Part XII of the Act. The
amendment brings the provision into line with the position under the
Telecommunications (Interception) Act 1979 and the Australian Federal
Police Act 1979 and will permit Federal Magistrates to consent to be
nominated to issue listening device warrants under the Customs Act
1901.
Item 3
This item replaces the definition of certifying officer as
it applies to the Independent Commission Against Corruption. The effect of the
new definition is to include within the meaning of certifying officer 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 1988
(NSW) where that officer has been authorised in writing by the Commissioner
to be a certifying officer for the purposes of the definition. The amendment
therefore extends the class of persons within the Commission who are certifying
officers under the Act to address possible operational difficulties that may be
experienced through the unavailability of the Commissioner or Assistant
Commissioners in some cases.
Item 4
This item amends the definition of permitted purpose in
relation to the Police Force of a State to include a purpose connected with the
termination of the appointment of an officer or staff member of that Police
Force. The effect of the amendment is to permit lawfully intercepted
information to be used or communicated in connection with the making of a
decision to terminate the appointment of an officer, as is currently the case in
relation to the Australian Federal Police.
Item 5
This item amends the definition of permitted purpose to
include a purpose connected with an investigation under the Anti-Corruption
Commission Act 1988 (WA) (the ACC Act) into alleged corrupt conduct and
other misconduct by a police officer or other public officer. This amendment
will have the effect of permitting the Commission to make use of lawfully
intercepted information in its investigative functions under the ACC Act, much
as the Police Integrity Commission can currently use lawfully obtained
information in an investigation of misconduct by an officer of the New South
Wales Police Service. The amendment reflects that the Commission’s
functions do not, for the most part, involve the investigation of prescribed
offences, a purpose for which intercepted information can currently be used
under the Act, but rather broader investigations of misconduct that falls short
of criminal conduct.
Item 6
This item amends the definition of exempt proceeding for the
purposes of the Act to include proceedings relating to a decision by a
Commissioner of a Police Service to dismiss, in the case of the Australian
Federal Police, an employee or special member, or, in the case of a Police Force
of a State, an officer or member of staff. The amendment has the effect of
ensuring that lawfully intercepted information that can, following the
amendments in item 4, be considered in a decision to dismiss such a person,
lawfully be adduced in evidence in a subsequent proceeding relating to that
decision. The amendment will have the effect of permitting intercepted
information lawfully considered in the making of the initial decision to be
given in evidence in a review or appeal of such a decision.
Item 7
This item amends the definition of class 2 offence to
include an offence punishable by a maximum period of at least 7 years where the
conduct constituting the offence involves, or would involve serious arson. 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 a serious arson offence
punishable by a maximum of at least 7 years imprisonment in the relevant
legislation. The amendment will therefore enable intercepting agencies to seek
interception warrants in connection with the investigation of serious arson
offences however described in relevant legislation, and including serious damage
to property by fire.
Item 8
This item amends the definition of class 2 offence to
include an offence punishable by a maximum period of at least 7 years where the
conduct constituting the offence involves, or would involve dealings in child
pornography or any involvement in the employment of a child in connection with
child pornography. 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 the range of child pornography offences described punishable by a maximum of
at least 7 years imprisonment in the relevant legislation.
Item 9
This item repeals the current reference to section 41Q of
the Crimes (Confiscation of Profits) Act 1986 (Vic) and replaces it with
a reference to section 122 of the Confiscation Act 1997 of Victoria. The
amendment reflects the repeal of the former Act and replacement with the latter,
which reproduces the relevant offence in identical terms. The formatting of the
reference is consistent with the proper citation for that statute in
Victoria.
Item 10
This item amends section 6H of the Act to make clear that
where an application for a warrant is made under section 48 of the Act, while
the information given in support of that application would relate to
requirements set out in section 45 and 46 of the Act, the warrant is
nevertheless a warrant issued in its own right under section 48. The amendment
is part of a number of minor amendments intended to clarify that while a warrant
issued under section 48 is issued where a Judge or AAT member would be empowered
to issue a warrant under section 45 or 46 of the Act, the warrant is
nevertheless a warrant in its own right. This amendment contributes to removing
any ambiguity in this regard.
Item 11
This item replaces the reference to the Crimes
(Confiscation of Profits) Act 1986 of Victoria with a reference to the
Confiscation Act 1997 of Victoria following the repeal of the former Act
and replacement with the latter. The effect of the amendment is to include
within the definition of a proceeding for the forfeiture of property an
application for a restraining order under the new Victorian Act, much as the
same proceedings under the previous Act were included in the definition. The
formatting of the reference is consistent with the proper citation for that
statute in Victoria.
Item 12
This item amends the definition of relevant proceeding as
it relates to the Australian Federal Police (AFP) and Police Forces of the
States to include proceeding relating to a decision to dismiss an AFP employee
or special member, or, in the case of a Police Force of a State, to dismiss an
officer or staff member of the force. This amendment will have the effect of
permitting lawfully intercepted information to be used or communicated in
connection with a proceeding related to a decision to terminate the appointment
of an employee, special member, officer or member as the case may be, including
a review or appeal of such a decision.
Item 13
This item amends the heading to Part V by replacing the
outdated reference to the corporation with a reference to a carrier. The
amendment corrects a drafting oversight when the Act was amended to reflect the
deregulation of the telecommunications industry.
Item 14
This item amends the heading to Part VI by replacing the
previous reference to the Australian Federal Police with a broader reference to
agencies.
Item 15
This item amends paragraph 33(a) to exclude the taking of
action to execute section 48 warrants from the functions of the
Telecommunications Interception Division of the Australian Federal Police (AFP).
This amendment reflects the fact that officers of an intercepting agency may be
authorised to execute the authority conferred by a section 48 warrant since the
entry into force of the Telecommunications (Interception) Legislation
Amendment Bill 2000 on 22 June 2000. Previously, such warrants were only
executable by authorised AFP officers. As the AFP is no longer required to
execute such warrants, it is appropriate that the definition of the functions of
the Telecommunications Interception Division of the AFP reflect this
position.
Item 16
This item amends section 47 to exclude a warrant issued
under section 48 from the application of the section. The amendment corrects an
unintended consequence of the replacement of a previous reference to sections 45
and 46 warrants with a broader reference to Part VI warrants effected following
the introduction of named person warrants by the Telecommunications
(Interception) Legislation Amendment Bill 2000. As a warrant issued under
section 48 is executed by effecting entry onto premises, rather than through the
assistance of the relevant carrier, no action would be taken by either the
Australian Federal Police or the relevant carrier to effect the interception.
By the operation of Clause 3, this amendment takes effect retrospectively from
22 June 2000. This will ensure that a warrant that would have been validly
executed in the absence of the error will not be affected by the error.
Item 17
This item amends section 48 to repeal and replace
subsection (1) of that section. The amendment has the effect of redrafting
subsection (1), and is part of a number of minor amendments intended to clarify
that while a warrant issued under section 48 is issued where a Judge or AAT
member would be empowered to issue a warrant issued under section 45 or 46 of
the Act, the warrant is nevertheless a warrant in its own right. This amendment
contributes to removing any ambiguity in this regard.
Item 18
This item effects a minor amendment to the expression of
the paragraph, and is part of a number of minor amendments intended to clarify
that while a warrant issued under section 48 is issued where a Judge or AAT
member would be empowered to issue a warrant issued under section 45 or 46 of
the Act, the warrant is nevertheless a warrant in its own right. This amendment
contributes to removing any ambiguity in this regard.
Item 19
This item amends paragraph 48(3)(a) to insert
‘and’ at the end of the paragraph. The amendment is consequential
upon the insertion of a new paragraph 48(3)(ca) into subsection 48(3) by
item 24.
Item 20
This item amends paragraph 48(3)(b) to remove the reference
to the application for a warrant having included a request that the warrant
authorise entry onto premises. The amendment is consequential upon the various
amendments to section 48 to clarify that a warrant authorising entry onto
premises is a warrant in its own right, rather than an extension of a warrant
issued under section 45 or 46. The requirement that a warrant issued under
section 48 include a request that the warrant authorise entry on specified
premises will be made clear by subsection (1) of the section, as amended by item
17.
Item 21
This item amends paragraph 48(3)(b) to insert
‘and’ at the end of the paragraph. The amendment is consequential
upon the insertion of a new paragraph 48(3)(ca) into subsection 48(3) by
item 24.
Item 22
This item amends paragraph 48(3)(c) to remove reference to
sections 45A and 46A. The effect of the amendment is to limit a Judge or
nominated AAT member’s power to issue a warrant authorising entry onto
premises to those cases in which the Judge or AAT member would have been
empowered to issue a warrant authorising interception of a specified
telecommunications service under section 45 or 46. The amendment corrects the
inadvertent extension of the power to issue a warrant authorising entry onto
premises to those cases in which a warrant is issued in respect of a named
person. As a warrant issued in respect of a named person authorises the
interception of any telecommunications service that the named person is likely
to use, an additional power to authorise entry onto premises to execute the
warrant in respect of each service identified represents an unduly broad and
inappropriate extension of the power to issue warrants authorising entry onto
premises. By the operation of Clause 3, this amendment takes effect
retrospectively from 22 June 2000.
Item 23
This item effects a minor amendment to the expression of
the paragraph, and is part of a number of minor amendments intended to clarify
that while a warrant issued under section 48 is issued where a Judge or AAT
member would be empowered to issue a warrant issued under section 45 or 46 of
the Act, the warrant is nevertheless a warrant in its own right. This amendment
contributes to removing any ambiguity in this regard.
Item 24
This item amends subsection 48(3) to insert a new paragraph
(ca). The effect of the amendment is to prescribe that a Judge or nominated AAT
member may only issue a warrant authorising entry onto premises where the
requirements of Division 3 have been met in relation to the application. This
amendment is part of a number of amendments intended to clarify that while a
warrant issued under section 48 is issued where a Judge or AAT member would be
empowered to issue a warrant issued under section 45 or 46 of the Act, the
warrant is nevertheless a warrant in its own right. This amendment reproduces
expressly under section 48 the requirement to comply with the procedural matters
prescribed by Division 3 in relation to the application, a requirement that was
previously imposed by reference back to sections 45 and 46, to contribute to
removing any ambiguity in this regard.
Item 25
This item amends subsection 48(4) to insert the words
‘under this section’. The amendment is part of a number of minor
amendments intended to clarify that while a warrant issued under section 48 is
issued where a Judge or AAT member would be empowered to issue a warrant issued
under section 45 or 46 of the Act, the warrant is nevertheless a warrant in its
own right issued pursuant to section 48. This amendment contributes to removing
any ambiguity in this regard.
Item 26
This item repeals subsection 48(6). The subsection defined
a reference to a service or telecommunications service for the purposes of the
subsection by reference to whether an application for warrant was made under
section 45, 46, 45A or 46A. The definition is no longer necessary following the
amendment effected by item 22 to the effect that a warrant may only be used
under section 48 where the Judge or AAT member would be empowered to issue a
warrant under section 45 or 46. In such cases it is clear that the reference to
the telecommunications service is a reference to the service in respect of which
the warrant is sought. The definition is accordingly unnecessary, and this
amendment removes it. By the operation of Clause 3, this amendment takes effect
retrospectively from 22 June 2000.
Item 27
This item amends subsection 49(7) of the Act to make clear
that where an application for a warrant is made under section 48 of the Act,
while the information given in support of that application would relate to
requirements set out in section 45 and 46 of the Act, the warrant is
nevertheless a warrant issued in its own right under section 48. The amendment
is part of a number of minor amendments intended to clarify that while a warrant
issued under section 48 is issued where a Judge or AAT member would be empowered
to issue a warrant under section 45 or 46 of the Act, the warrant is
nevertheless a warrant in its own right. This amendment contributes to removing
any ambiguity in this regard.
Item 28
This item amends section 54 to exclude warrants issued
under section 48 from the rule created by that section that warrants issued to
agencies other than the Australian Federal Police (AFP) do not enter into force
until a copy of the warrant or notification of the issue of a warrant on a
telephone application is received by or on behalf of the Commissioner of the
Australian Federal Police. This amendment reflects the fact that officers of an
intercepting agency may be authorised to execute the authority conferred by a
section 48 warrant since the entry into force of the Telecommunications
(Interception) Legislation Amendment Bill 2000 on 22 June 2000. Previously,
such warrants were only executable by authorised officers of the Australian
Federal Police. As the AFP is no longer required to execute such warrants, it is
no longer appropriate that a copy of the warrant be received by the AFP in order
for the warrant to enter into force. This amendment excludes warrants issued
under section 48 to agencies other than the AFP from the application of this
delayed entry into force.
Item 29
This item inserts a new subsection 54(2). The amendment
has the effect of providing that a warrant issued to the Australian Federal
Police or a warrant issued under section 48 comes into force when it is issued,
and accordingly makes express on the face of the legislation when warrants not
covered by subsection (1) enter into force. It should be noted however that the
new provision does not affect the rule that, for the purposes of calculating the
number of days for which a warrant is in force, the day on which the warrant is
issued counts as a day for which the warrant is in force, regardless of the time
of day at which the warrant is issued.
Item 30
This item amends paragraph 58(1)(b) to exclude warrants
issued under section 48 from the application of the provision. The effect of
the amendment is to remove a prima facie obligation on the Commissioner of the
Australian Federal Police (AFP) to take steps to ensure the discontinuance of
interceptions on receipt of a notice of revocation or proposed revocation. The
amendment is consequential upon the amendments made by the Telecommunications
(Interception) Legislation Amendment Act 2000 to permit agencies to execute
section 48 warrants issued to them. Previously, such warrants were only
executable by authorised officers of the AFP. As the AFP is no longer required
to execute such warrants, this amendment excludes them from the application of
this requirement. Furthermore, by the operation of Clause 3, this amendment
takes effect retrospectively from 22 June 2000. This will ensure that no
adverse effects flow from a failure by the AFP to take action in relation to a
warrant for whom the execution and disconnection was properly a responsibility
of the agency to which the warrant was issued.
Item 31
This item amends paragraph 60(1)(a) to exclude warrants
issued under section 48 from the application of the provision. The effect of
the amendment is to remove the requirement on a chief officer of an agency to
inform the Managing Director of a carrier of the issue of the warrant under
section 48 and to further provide a copy of the warrant. The amendment reflects
the fact that as such a warrant is executed by entry onto premises, the carrier
need not be notified of the issue of the warrant.
Item 32
This item amends subsection 61(3) to remove warrants issued
under section 48 from the ambit of the section. The effect of the amendment is
to limit the ability of a certifying officer to issue an evidentiary certificate
setting out facts connected with the enabling of an interception to warrants
issued to another agency under sections 45, 45A, 46 and 46A. The amendment is
consequential upon the amendments made by the Telecommunications
(Interception) Legislation Amendment Act 2000 to permit agencies to execute
section 48 warrants issued to them. Previously, such warrants were only
executable by authorised officers of the AFP. As such warrants will now be
executed by the agency to which they are issued, it is appropriate that the
capacity of the AFP certifying officer to issue an evidentiary certificates be
confined to those warrants in which the AFP retains a role in enabling the
interception to take place. By the operation of Clause 3, this amendment takes
effect retrospectively from 22 June 2000.
Item 33
This item amends subparagraph 68(c)(i) to insert
‘or’ at the end of the subparagraph. The amendment is consequential
upon the insertion of a new subparagraph 68(c)(iia) into paragraph 68(c) by
item 34.
Item 34
This item amends paragraph 68(c) to insert a new
subparagraph 68(c)(iia). The effect of the amendment is to permit the chief
officer of an agency to permit lawfully intercepted information originally
obtained by that agency to the Commissioner of the Australian Federal Police
(AFP) where that information relates or appears to relate to an act or omission
by an AFP employee or special member that may give rise to a decision by the
Commissioner to terminate the employment or appointment of that person as the
case may be. The amendment is intended to ensure that an agency which holds
intercepted information in relation to an AFP officer that might cause the
Commissioner of the AFP to dismiss that officer can communicate that information
to the Commissioner.
Item 35
This item amends subparagraph
68(d)(i) to insert ‘or’ at the end of the subparagraph. The
amendment is consequential upon the insertion of a new subparagraph 68(d)(iia)
into paragraph 68(d) by item 36.
Item 36
This item amends paragraph 68(c) to insert a new
subparagraph 68(c)(iia). 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 Police Force of a State where
that information relates or appears to relate to an act or omission by an
officer or member of staff of that Police Force that may give rise to a decision
by the Commissioner to terminate the appointment of the officer or member of
staff. The amendment is intended to ensure that an agency which holds
intercepted information that might cause the Commissioner of a Police Force of a
State to dismiss an officer or member of that Force can communicate that
information to the relevant Commissioner.
Item 37
This item
amends the layout and expression of paragraph 81A(2)(g) of the Act to make clear
that where an application for warrant is made under section 48 of the Act, while
the information given in support of that application would relate to
requirements set out in section 45 and 46 of the Act, the warrant is
nevertheless a warrant issued in its own right under section 48. The amendment
is part of a number of minor amendments intended to clarify that while a warrant
issued under section 48 is issued where a Judge or AAT member would be empowered
to issue a warrant under section 45 or 46 of the Act, the warrant is
nevertheless a warrant in its own right. This amendment contributes to removing
any ambiguity in this regard.
Item 38
This item amends the layout and expression of paragraph
81A(2)(g) of the Act to make clear that where an application for warrant is made
under section 48 of the Act, while the information given in support of that
application would relate to requirements set out in section 45 and 46 of the
Act, the warrant is nevertheless a warrant issued in its own right under section
48. The amendment is part of a number of minor amendments intended to clarify
that while a warrant issued under section 48 is issued where a Judge or AAT
member would be empowered to issue a warrant under section 45 or 46 of the Act,
the warrant is nevertheless a warrant in its own right. This amendment
contributes to removing any ambiguity in this regard.