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2002
THE PARLIAMENT OF THE COMMONWEALTH
OF AUSTRALIA
HOUSE OF
REPRESENTATIVES
TELECOMMUNICATIONS INTERCEPTION LEGISLATION
AMENDMENT
BILL 2002
EXPLANATORY
MEMORANDUM
(Circulated by authority of the Attorney-General,
the Honourable Daryl Williams AM QC MP)
TELECOMMUNICATIONS INTERCEPTION LEGISLATION
AMENDMENT BILL 2002
OUTLINE
This Bill amends the Telecommunications
(Interception) Act 1979 to:
• legislatively clarify the application of the Act to telecommunications services involving a delay between the initiation of the communication and its access by the recipient, such as email and short messaging services;
• include offences constituted by conduct involving acts of terrorism as offences in relation to which a telecommunications interception warrant may be sought;
• 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;
• include the Royal Commission into Police Corruption as an eligible authority for the purposes of the Act to permit the Commission to receive relevant intercepted information in certain circumstances;
• 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;
• reflect the merger of the Queensland Crime Commission and Criminal Justice Commission to form the Crime and Misconduct Commission; 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 23,
29, 33, 37 and 39, the Act is to commence on the day on which the Act receives
Royal Assent.
The clause further provides that items 23, 29, 33, 37 and
39 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 the 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
Customs Act 1901
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 amends paragraph (d) of the definition of
certifying officer to replace the definition as it applies to the New South
Wales Crime Commission. The effect of the new definition is to include within
the meaning of certifying officer a member 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 a member of the Commission.
Item 4
This item amends paragraph (e) of the definition of
certifying officer to replace the definition 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 5
This item amends subparagraph (g)(iii) of the definition of
certifying officer to amend the definition as it applies to the Police Integrity
Commission. The effect of the amended definition is to include within the
meaning of certifying officer a member 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 effects a minor change to the existing provision,
which had the effect of including within the definition only members of the
staff of the Commission who were in fact senior executive service officers. The
existing provision was ineffective to broaden the definition as it applies to
the Police Integrity Commission as senior officers of the Commission are
employed under the Police Integrity Commission Act 1996 of New South
Wales, rather than the Public Sector Management Act 1988.
Item 6
This item amends paragraphs (a) and (b) of the definition of
class 1 offence to insert ‘or’ at the end of each paragraph. The
amendment is consequential upon the insertion of a new paragraph (ca) at item 7.
Item 7
This item amends the definition of class 1 offence to insert
a new paragraph (ca) to include within the definition an offence constituted by
conduct involving an act or acts of terrorism.
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 an offence constituted by conduct involving an
act of terrorism. The amendment will therefore enable intercepting agencies to
seek interception warrants in connection with the investigation of terrorism
offences, however described in relevant legislation.
Item 8
This item amends paragraph (d) of the definition of class 1
offence to replace the existing reference to paragraph (c) of the definition
with a reference to paragraphs (c) and (ca). The amendment is consequential
upon the insertion of a new paragraph (ca) into the definition by item 7.
Item 9
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 10
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 11
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 12
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 13
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 14
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 15
This item amends section 6 of the Act to make specific
provision for the application of the definition of interception to delayed
access message services. The amendments insert three new subsections into the
section, and have the effect of providing that a stored communication is taken
to be no longer passing over the telecommunications system when it can be
accessed in a particular way.
The amendments are intended to
legislatively clarify the application of the Act to modern means of
telecommunication, specifically those means of telecommunication in which there
may be a delay between the initiation of the communication and its ultimate
receipt by the intended recipient. The amendments do so by first defining a
concept of delayed access message service in a new subsection 6(3). The
subsection includes within the definition any means by which a communication can
be sent without being directly in contact with the intended recipient, and later
accessed by the recipient. The definition would cover such services as fixed
line and mobile voicemail services, short messaging services (SMS messaging) and
email services.
The amendments then define a concept of stored
communication by reference to the use of a delayed access message service.
Under the new subsection 6(4), a communication will be a stored communication
for the purposes of the section where the communication is sent using a delayed
access message service, is stored on equipment, and can be accessed using that
equipment with or without other equipment, but without using a
telecommunications line, except to the extent that using a line is an incident
of turning on the equipment, accessing power for the equipment, or any other
action that might later be prescribed by regulation. The subsection further
provides two examples to assist in the application of the provision to specific
types of delayed access message service.
Under the definition, an SMS
message stored on a GSM mobile phone SIM card would be a stored communication,
as the content of the message is stored on the SIM, and the message can be
accessed by using the SIM in combination with a mobile telephone handset or by
the use of a SIM card reader. Likewise, an email message that has been
downloaded to a computer hard disk would be a stored communication where it can
be accessed without connecting the computer to a telecommunications line. A
mobile voicemail message would not however be a stored communication, as the
retrieval of the message requires the user to use a line to listen to the
message. Similarly, fixed voicemail that requires the user to dial a mailbox to
retrieve the message would not be a stored communication, while locally stored
voicemail would however be a stored communication for the purposes of the
section.
Proposed subsection 6(5) deems a stored communication to no
longer be passing over the telecommunications system when it is accessed by the
equipment on which it is stored, whether alone or with other equipment. The
effect of the amendment is to exclude such access from the scope of
interception. Accordingly, a telecommunications interception warrant will not
be required to access the communication so stored, but rather another applicable
form of lawful access, such as a search warrant or seizure order would be
appropriate.
Item 16
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 17
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 18
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 19
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 20
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 21
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 22
This item amends paragraph 39(2)(d) of the Act by repealing
paragraph (ii), which had the effect of providing that, in the case of the Crime
Commission, an application for a warrant authorising telecommunications
interception may be made by an officer of the Police Force of New South Wales
who is a member of the staff of the Crime Commission, and substituting a new
paragraph. The amendment has the effect of providing that, in the case of the
Crime Commission, an application for a telecommunications interception warrant
must be made by either a member of the Crime Commission, or a member of staff of
the Commission. The amendment addresses operational difficulties created by the
existing narrow definition by permitting all members of staff to apply for
telecommunications interception warrants, consistent with the situation in
respect of the Police Integrity Commission and the Independent Commission
Against Corruption.
Item 23
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 24
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 25
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 26
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 31.
Item 27
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
24.
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 31.
Item 29
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 30
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 31
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 32
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 33
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 24 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 34
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 35
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 36
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 37
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 38
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 39
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 40
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 41.
Item 41
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 communicate the information 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 42
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 43.
Item 43
This item amends paragraph 68(d) to insert a new
subparagraph 68(d)(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 44
This item amends section 68 of the Act to insert a new
paragraph (ea). The new paragraph has the effect of providing that, where
intercepted information relates or appears to relate to a matter that might give
rise to an investigation by the Independent Commission Against Corruption, the
chief officer of the agency that originally obtained the information may
communicate the information to the Commissioner of the Commission. The
amendment will overcome the existing limitations on the ability of intercepting
agencies to communicate intercepted information to the Commission, which
effectively limit those agencies to communicating relevant information where an
relevant investigation is already being undertaken.
Item 45
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 46
This item amends the layout and expression of paragraph
81C(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.
Schedule 2 – Amendment of the Telecommunications (Interception) Act 1979 relating to new and defunct State bodies
Item 1
This item amends the definition of certifying officer to
reflect the merger on 1 January 2002 of the Criminal Justice Commission and the
Queensland Crime Commission to form the Crime and Misconduct Commission. The
amendment has the effect of providing that, in the case of the Crime and
Misconduct Commission, a certifying officer is a Commissioner of the
Commission.
Item 2
This item amends subparagraph (h)(ii) of the definition of
certifying officer to omit ‘or’ at the end of the subparagraph. The
amendment is consequential upon the repeal of paragraph (i) of the definition at
item 3.
Item 3
This item amends the definition of certifying officer by
repealing paragraph (i), which provided a definition of the term in the case of
the Queensland Crime Commission. The amendment reflects the merger of the
Criminal Justice Commission and the Queensland Crime Commission to form the
Crime and Misconduct Commission. A definition of the term as it applies to the
new Crime and Misconduct Commission is created by the amendment at item 1.
Item 4
This item amends paragraph (f) of the definition of chief
officer to replace the existing reference to the Criminal Justice Commission
with a reference to the Crime and Misconduct Commission. The amendment reflects
the merger of the Criminal Justice Commission and the Queensland Crime
Commission to form the Crime and Misconduct Commission.
Item 5
This item amends paragraph (f) of the definition of chief
officer to replace the existing reference to the Chairman with a reference to
the Chairperson of the Commission. Combined with item 5 the amendment has the
effect of providing that, in the case of the Crime and Misconduct Commission,
the chief officer is the Chairperson of the Commission.
Item 6
This item amends the definition of chief officer by
repealing paragraph (g), which provided a definition of the term in the case of
the Royal Commission into the New South Wales Police Service. The Royal
Commission was wound up on 26 August 1997, and the definition is no longer
necessary.
Item 7
This item amends the definition of chief officer by
repealing paragraph (j), which provided a definition of the term in the case of
the Queensland Crime Commission, and substituting a definition of the term in
the case the Royal Commission into Police Corruption. The amendment reflects
the merger of the Criminal Justice Commission and the Queensland Crime
Commission to form the Crime and Misconduct Commission on the one hand, and the
inclusion of the Royal Commission into Police Corruption as an eligible
authority for the purposes of the Act on the other. A definition of the term as
it applies to the new Crime and Misconduct Commission is created by the
amendments at items 4 and 5. The amendment has the effect of providing that, in
the case of the Royal Commission into Police Corruption, the chief officer is
the person appointed to be the Royal Commission.Item 8
This item
repeals the definition of commission member. The term was employed in relation
to the Queensland Crime Commission, and is no longer required following the
merger of the Criminal Justice Commission and the Queensland Crime Commission to
form the Crime and Misconduct Commission.
Item 9
This item amends paragraph (b) of the definition of
Commissioner to replace the existing reference to the Criminal Justice
Commission with a reference to the Crime and Misconduct Commission. The
amendment reflects the merger of the Criminal Justice Commission and the
Queensland Crime Commission to form the Crime and Misconduct Commission.
Item 10
This item amends paragraph (b) of the definition of
Commissioner to replace the existing reference to the Chairman with a reference
to the Chairperson of the Commission. Combined with item 9 the amendment has
the effect of providing that, in the case of the Crime and Misconduct
Commission, Commissioner means a member of the Commission, including the
Chairperson of the Commission.
Item 11
This item inserts a definition of Crime and Misconduct Act.
The amendment has the effect of providing that, for the purposes of the Act, a
reference to the Crime and Misconduct Act means the Crime and Misconduct Act
2001 of Queensland.
Item 12
This item inserts a definition of Crime and Misconduct
Commission. The amendment has the effect of providing that, for the purposes of
the Act, a reference to the Crime and Misconduct Commission means the Crime and
Misconduct Commission of Queensland.
Item 13
This item repeals the definition of Criminal Justice Act.
The term was employed in relation to the Criminal Justice Commission, and is no
longer required following the merger of the Criminal Justice Commission and the
Queensland Crime Commission to form the Crime and Misconduct Commission.
Item 14
This item repeals the definition of Criminal Justice
Commission. The term is no longer required following the merger of the Criminal
Justice Commission and the Queensland Crime Commission to form the Crime and
Misconduct Commission.
Item 15
This item amends paragraph (b) of the definition of
eligible authority to remove the reference to the Royal Commission into the New
South Wales Police Service. The Royal Commission was wound up on 26 August
1997, and is therefore no longer necessary that the Commission be included as an
eligible authority for the purposes of the Act.
Item 16
This item amends paragraph (c) of the definition of
eligible authority to replace the reference to the Criminal Justice Commission
and Queensland Crime Commission with a reference to the Crime and Misconduct
Commission. The amendment reflects the merger of the Criminal Justice
Commission and the Queensland Crime Commission to form the Crime and Misconduct
Commission, and has the effect of including the Crime and Misconduct Commission
as an eligible authority for the purposes of the Act. The amendment will permit
the Commission to receive relevant intercepted information from intercepting
agencies in certain circumstances, in much the same way as the Criminal Justice
Commission and Queensland Crime Commission were able to.
Item 17
This item amends paragraph (d) of the definition of
eligible authority to include a reference to the Royal Commission into Police
Corruption. The amendment will have the effect of including the Royal
Commission as an eligible authority for the purposes of the Act, enabling it to
receive relevant intercepted information from intercepting agencies in certain
circumstances. The inclusion of the Royal Commission as an eligible authority
does not, however, permit the Commission to apply for telecommunication
interception warrants in its own right.
Item 18
This item repeals the definition of member of staff of the
QCC. The term was employed in relation to the Queensland Crime Commission, and
is no longer required following the merger of the Queensland Crime Commission
and the Criminal Justice Commission to form the Crime and Misconduct Commission.
Item 19
This item amends paragraph (f) of the definition of officer
to replace the existing definition of the term in the case of the Criminal
Justice Commission with a new definition applying to the Crime and Misconduct
Commission. The amendment reflects the merger of the Criminal Justice
Commission and the Queensland Crime Commission to form the Crime and Misconduct
Commission, and has the effect of providing that, in the case of the Crime and
Misconduct Commission, an officer is a commission officer as defined in the
Crime and Misconduct Act 2001 of Queensland.
Item 20
This item repeals paragraph (g) of the definition of
officer, which provided a definition of the term in the case of the Royal
Commission into the New South Wales Police Service. The Royal Commission was
wound up on 26 August 1997, and the definition is no longer necessary.
Item 21
This item amends paragraph (j) of the definition of officer
by repealing paragraph (j), which provided a definition of the term in the case
of the Queensland Crime Commission, and substituting a definition of the term in
the case of the Royal Commission into Police Corruption. The amendment reflects
the merger of the Criminal Justice Commission and the Queensland Crime
Commission to form the Crime and Misconduct Commission on the one hand, and the
inclusion of the Royal Commission into Police Corruption as an eligible
authority for the purposes of the Act on the other. A definition of the term as
it applies to the new Crime and Misconduct Commission is created by the
amendments at item 19. The amendment has the effect of providing that, in the
case of the Royal Commission into Police Corruption, an officer is either the
person appointed to be the Royal Commission, or a member of staff of that
Commission.
Item 22
This item amends paragraph (d) of the definition of
prescribed investigation to replace the existing reference to the Criminal
Justice Commission with a reference to the Crime and Misconduct Commission. The
amendment reflects the merger of the Criminal Justice Commission and the
Queensland Crime Commission to form the Crime and Misconduct Commission.
Item 23
This item amends paragraph (d) of the definition of
prescribed investigation to replace the existing reference to the Criminal
Justice Act with a reference to the Crime and Misconduct Act. Combined with
item 22 the amendment has the effect of providing that, in the case of the Crime
and Misconduct Commission, a prescribed investigation means an investigation
that the Commission is conducting in the performance of its functions under the
Crime and Misconduct Commission Act 2001 of Queensland.
Item 24
This item amends the definition of prescribed investigation
by repealing paragraph (e), which provided a definition of the term in the case
of the Royal Commission into the New South Wales Police Service. The Royal
Commission was wound up on 26 August 1997, and the definition is no longer
necessary.
Item 25
This item amends the definition of officer by repealing
paragraph (j), which provided a definition of the term in the case of the
Queensland Crime Commission, and substituting a definition of the term in the
case of the Royal Commission into Police Corruption. The amendment reflects the
merger of the Criminal Justice Commission and the Queensland Crime Commission to
form the Crime and Misconduct Commission on the one hand, and the inclusion of
the Royal Commission into Police Corruption as an eligible authority for the
purposes of the Act on the other. A definition of the term as it applies to the
new Crime and Misconduct Commission is created by the amendments at item 19.
The amendment has the effect of providing that, in the case of the Royal
Commission into Police Corruption, a prescribed investigation is an
investigation that the Royal Commission is undertaking in the course of the
inquiry it has been appointed to conduct.
Item 26
This item repeals the definition of QCC. The term is no
longer required following the merger of the Queensland Crime Commission and the
Criminal Justice Commission to form the Crime and Misconduct Commission.
Item 27
This item repeals the definition of Queensland Act. The
term was employed in relation to the Queensland Crime Commission, and is no
longer required following the merger of the Queensland Crime Commission and the
Criminal Justice Commission to form the Crime and Misconduct Commission.
Item 28
This item repeals the definition of Queensland crime
commissioner. The term was employed in relation to the Queensland Crime
Commission, and is no longer required following the merger of the Queensland
Crime Commission and the Criminal Justice Commission to form the Crime and
Misconduct Commission.
Item 29
This item amends paragraph (f) of the definition of
relevant offence to replace the existing reference to the Criminal Justice
Commission with a reference to the Crime and Misconduct Commission. The
amendment reflects the merger of the Criminal Justice Commission and the
Queensland Crime Commission to form the Crime and Misconduct Commission, and has
the effect of providing that, in the case of the Crime and Misconduct
Commission, relevant offence is a prescribed offence that is an offence against
the law of Queensland and to which a prescribed investigation relates.
Item 30
This item amends the definition of relevant offence by
repealing paragraph (g), which provided a definition of the term in the case of
the Royal Commission into the New South Wales Police Service. The Royal
Commission was wound up on 26 August 1997, and the definition is no longer
necessary.
Item 31
This item amends the definition of relevant offence by
repealing paragraph (j), which provided a definition of the term in the case of
the Queensland Crime Commission, and substituting a definition of the term in
the case of the Royal Commission into Police Corruption. The amendment reflects
the merger of the Criminal Justice Commission and the Queensland Crime
Commission to form the Crime and Misconduct Commission on the one hand, and the
inclusion of the Royal Commission into Police Corruption as an eligible
authority for the purposes of the Act on the other. A definition of the term as
it applies to the new Crime and Misconduct Commission is created by the
amendments at item 29. The amendment has the effect of providing that, in the
case of the Royal Commission into Police Corruption, a relevant offence is an
offence against the law of Western Australia to which a prescribed investigation
relates.
Item 32
This item inserts a definition of Royal Commission into
Police Corruption. The amendment has the effect of providing that, for the
purposes of the Act, the Royal Commission into Police Corruption means the Royal
Commission established by the Governor Western Australia on 12 December 2001 to
inquire into whether, since 1 January 1985, there has been any corrupt or
criminal conduct by any Western Australian police officer. The insertion of the
definition is consequential upon the inclusion of the Royal Commission as an
eligible authority for the purposes of the Act by item 17.
Item 33
This item repeals the definition of Royal Commission into
the New South Wales Police Service. The Royal Commission was wound up on 26
August 1997, and the definition is no longer necessary.
Item 34
This item amends the definition of exempt proceeding
provided in section 5B by repealing paragraph (i), which had the effect of
including a proceeding of the Royal Commission into the New South Wales Police
Service within the scope of the term, and substituting a reference to a
proceeding of the Royal Commission into Police Corruption. The amendment
reflects the completion of proceedings by the Royal Commission into the New
South Wales Police Service, which was wound up on 26 August 1997 on the one
hand, and the inclusion of the Royal Commission into Police Corruption as an
eligible authority for the purposes of the Act on the other. The amendment has
the effect of providing that, for the purposes of the Act, a reference to an
exempt proceeding includes a proceeding of the Royal Commission into Police
Corruption. The effect of the amendment will be to permit intercepted
information to be given in evidence in a proceeding of that Royal Commission.
Item 35
This item amends subparagraph 6A(1)(c)(iii) of the Act to
replace the existing reference to the Criminal Justice Commission with a
reference to the Crime and Misconduct Commission. The amendment reflects the
merger of the Criminal Justice Commission and the Queensland Crime Commission to
form the Crime and Misconduct Commission, and has the effect of providing that,
in the case of the Crime and Misconduct Commission, a reference to an
investigation of an offence by the Commission is a reference to a prescribed
investigation to the extent that the prescribe investigation relates to that
offence.
Item 36
This item amends paragraph 6A(1)(c) of the Act by repealing
subparagraph (iv). The subparagraph contains a reference to the Royal
Commission into the New South Wales Police Service. The amendment removes the
reference as, following the winding up of the Royal Commission on 26 August
1997, it is no longer necessary to clarify the meaning of a reference to an
investigation of an offence by the Royal Commission.
Item 37
This item amends paragraph 6A(1)(c) of the Act by repealing
subparagraph (ix), which contained a reference to the Queensland Crime
Commission, and substituting a reference to the Royal Commission into Police
Corruption. The amendment reflects the merger of the Criminal Justice
Commission and the Queensland Crime Commission to form the Crime and Misconduct
Commission on the one hand, and the inclusion of the Royal Commission into
Police Corruption as an eligible authority for the purposes of the Act on the
other. The amendment has the effect of providing that, in the case of the Royal
Commission into Police Corruption, a reference to an investigation of an offence
by the Royal Commission is a reference to a prescribed investigation to the
extent that the prescribed investigation relates to that offence.
Item 38
This item amends paragraph 6L(2)(b) of the Act to remove
the reference to the Royal Commission into the New South Wales Police Service.
The amendment removes the reference as, following the winding up of the Royal
Commission on 26 August 1997, it is no longer necessary to clarify the meaning
of a reference to a relevant proceeding in relation to the Royal Commission.
Item 39
This item amends paragraph 6L(2)(c) of the Act to replace
the reference to the Criminal Justice Commission and Queensland Crime Commission
with a reference to the Crime and Misconduct Commission. The amendment reflects
the merger of the Criminal Justice Commission and the Queensland Crime
Commission to form the Crime and Misconduct Commission.
Item 40
This item amends paragraph 6L(2)(d) of the Act to add a
reference to the Royal Commission into Police Corruption. The amendment is
consequential upon the inclusion of the Royal Commission as an eligible
authority for the purposes of the Act by item 17, and has the effect of
providing that, in the case of the Royal Commission, a reference to a relevant
proceeding is a prosecution for a prescribed offence that is an offence against
the law of Western Australia and to which a prescribed investigation relates or
related.
Item 41
This item amends subsection 39(2) of the Act by repealing
paragraph (f), which had the effect of providing that, in the case of the
Criminal Justice Commission, an application for a warrant authorising
telecommunications interception must be made by either a Commissioner of the
Commission or an officer of the Queensland Police Force who is an officer of the
Commission, and substituting a new paragraph. The amendment has the effect of
providing that, in the case of the Crime and Misconduct Commission, an
application for a telecommunications interception warrant must be made by a
commission officer as defined in the Crime and Misconduct Commission Act 2001
of Queensland. The amendment reflects the merger of the Criminal Justice
Commission and the Queensland Crime Commission to form the Crime and Misconduct
Commission. It should be noted however that, unless a declaration is made in
relation to the Commission under section 34 of the Act, the Crime and Misconduct
Commission may not in fact apply for telecommunications interception warrant.
Item 42
This item amends subparagraph 39(2)(h)(ii) of the Act to
omit ‘or’ at the end of the subparagraph. The amendment is
consequential upon the repeal of subparagraph (i) effected by item 43.
Item 43
This item amends subparagraph 39(2)(h)(ii) of the Act by
repealing paragraph (i), which had the effect of providing that, in the case of
the Queensland Crime Commission, an application for a telecommunications
interception warrant on behalf of the Commission must be made by a commission
member or a member of staff of the Commission. The amendment reflects the
merger of the Criminal Justice Commission and the Queensland Crime Commission to
form the Crime and Misconduct Commission. Provision for who may apply for a
warrant authorising telecommunications interception on behalf of the Crime and
Misconduct Commission is made by item 41.
Item 44
This item amends section 68 of the Act by repealing
paragraph (e). The paragraph had the effect of providing that, where
intercepted information relates or appears to relate to certain matters
specified in the paragraph, the information can be communicated to the person
appointed to be the Royal Commission into the New South Wales Police Service.
The Royal Commission was wound up on 26 August 1997, and it is therefore no
longer necessary that the Act include provision for information to be
communicated to the Commission.
Item 45
This item amends section 68 of the Act by repealing
paragraph (h), which prescribed the circumstances in which intercepted
information could be communicated to the Queensland Crime Commission, and
substituting two new paragraphs relating to the communication of intercepted
information to the Crime and Misconduct Commission and the Royal Commission into
Police Corruption.
New paragraph (h) has the effect of providing that,
where intercepted information relates or appears to relate to a matter that
might give rise to an investigation by the Crime and Misconduct Commission, the
chief officer of the agency that originally obtained the information may
communicate the information to the Commissioner of the Commission. The
amendment reflects the merger of the Queensland Crime Commission and the
Criminal Justice Commission, and will have the effect of permitting relevant
information to be communicated to the Crime and Misconduct Commission in much
the same way as it was able to be communicated to the Queensland Crime
Commission.
New paragraph (i) similarly provides that where intercepted
information relates or appears to relate to a matter that might give rise to an
investigation by the Royal Commission into Police Corruption, the chief officer
of the agency that originally obtained the information may communicate the
information to the person appointed to be the Royal Commission.
Item 46
This item provides transitional arrangements following the
merger of the Queensland Crime Commission and the Criminal Justice Commission to
form the Crime and Misconduct Commission. The provision is necessary as the
merger took effect on 1 January 2002, and will have the effect of deeming acts
done by the predecessor Commissions to be treated as though they had been done
by the Crime and Misconduct Commission. The provision is necessary to ensure
that intercepted information that was otherwise lawfully communicated to the
predecessor Commissions is not rendered unlawful by the merger.
The
amendment further empowers the Governor-General to make regulations in relation
to transitional matters arising out of the merger or the amendments to reflect
the merger. The power has been included as a means to address any unforseen
issues arising out of the merger of the Queensland Crime Commission and Criminal
Justice Commission. The power would only be employed in the event that
unanticipated transitional issues arise, and would have the effect of ensuring
the continuation of the application of relevant provisions to the new Crime and
Misconduct Commission from its establishment. It should be noted that the new
Commission is charged with similar functions to its predecessor Commissions, and
that the amendments to the Act are limited to those necessary to ensure that
those acts that could be done in relation to the Queensland Crime Commission and
Criminal Justice Commission remain lawful notwithstanding the merger, such as
the use and communication of intercepted information. Neither the transitional
provision, nor any regulations made under the power, would have an adverse
effect on any person, nor would the amendments confer any additional powers on
the Crime and Misconduct Commission over and above those accorded to the
predecessor Commissions. Moreover, any regulations made under the power would
not have retrospective effect.