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Thursday, 5 February 2009
Page: 558


Mr HAYES (12:29 PM) —I take some pride in speaking on the Telecommunications Interception Legislation Amendment Bill (No. 2) 2008 for a couple of different reasons. As I think most people in the House are aware, prior to coming to this place I spent a good many years representing the respective police jurisdictions across this country, and as a consequence I have had a lot to do with the men and women who serve this country well—


Mr Kerr interjecting


Mr HAYES —in protecting society, as the member for Denison says. It is not an easy job. That job is ever changing and we must provide our men and women in blue with the tools that they need to be able to do the job on our behalf. That is essentially what this bill is about today.

I will go to some of the aspects of it. This bill amends the Telecommunications (Interception and Access) Act 1979 to facilitate access by the Queensland law enforcement agencies to telecommunication interception powers. This will give Queensland law enforcement agencies access to the same investigative tools as all other police forces around the country. The amendment will provide clarity and substantial detail about exactly who has the authority to issue evidentiary certificates, to listen in on telephones and voicemails, and read text messages and emails as they apply to other jurisdictions. The amendment in the bill does not create or expand powers of authorisation of persons and therefore is unlikely to have any financial impact, but it does give the Queensland police, as a law enforcement agency under that sovereign state, the ability to access telephone intercept powers.

As the member for Denison will recall—we rely on his learned views—we dealt with this matter in the Parliamentary Joint Committee on the Australian Crime Commission back in 2007. In September 2007, in the midst of an inquiry that the ACC did into the future impacts of serious and organised crime on Australian society, one of the things that we were determined to look at was the contemporary measures available to our law enforcement agencies to combat serious and organised crime. One of the things that stood out boldly, quite frankly, in the course of that investigation conducted by the joint parliamentary committee was the fact that the Queensland police were the only policing organisation in the Commonwealth who did not have powers to access telephone intercepts. That meant that, when the Queensland police participated in serious and organised crime detection or investigation, they attempted to do those investigations and operations where they needed telephone intercept ability in partnership with the Australian Crime Commission, because—as you are aware, Mr Deputy Speaker, and as the member for Denison is certainly aware—that organisation has the power of telephone intercepts and can apply it throughout the Commonwealth. Other than by entering into a partnership arrangement with the Australian Crime Commission, the Queensland police were not able to participate in what I know to be one of the most significant detection methods deployed by our law enforcement agencies across the country in addressing serious and organised crime—that is, telephone interception.

The committee was made aware of the inability of the Queensland police agencies to access telephone intercept warrants. We took evidence from Detective Chief Superintendent Barnett of the Queensland Police Service, and this is what he said to the committee:

The QPS, in not having telephone interception powers, is unique as a policing jurisdiction within Australia. Consequently, partnerships with policing agencies that can facilitate access to telecommunications intercept, TI, powers are often critical to QPS investigations targeting significant criminal entities and networks. Every major investigation conducted between the ACC and the QPS has utilised telephone interception as a key investigative strategy and this support will continue to be critical to the QPS investigations targeting serious and organised crime.

Chief Superintendent Barnett indicated that attempts have been made in the past to facilitate the introduction of telephone intercept powers in Queensland but that these had not been successful. Because they had not been successful domestically, within the sovereign ability of that state, he was quite open in indicating the reliance of the Queensland police on acting in partnership with the Australian Crime Commission in any investigation to target serious and organised crime, because a key investigative tool for those investigations has been and is, right across the country, telephone interception.

The committee, during the course of that inquiry, raised this matter with the Commonwealth Attorney-General’s Department. The department, particularly the head of the telecommunications and surveillance branch, confirmed that agencies such as the ACC and the AFP, and agencies in every other state, had the ability to deploy these powers. As was indicated from the Commonwealth’s perspective in that respect, there is only one police force, the Queensland Police Service, that does not have interception powers. The Queensland Crime and Misconduct Commission also does not have interception powers. These agencies are currently working their way forward with our colleagues in the Queensland Department of Justice and Attorney-General and with us to look at the interception powers of the Queensland police.

That was the position of the Commonwealth in trying to broker an arrangement with the Queensland government to look at the development of interception powers in Queensland. It becomes significant in terms of policing if one of our law enforcement bodies does not have powers in the detection of serious organised crime. That makes a significant chink in the armour that protects the community from those who benefit from serious and organised crime. It is not for the Commonwealth to conduct all these investigations—certainly, we play a role in that and we will continue to play a role in targeting serious and organised crime—but there is a domestic responsibility for each of the states of this Commonwealth to do the same and to work as closely as they can in a collaborative arrangement. That, clearly, was not legally possible in terms of the lack of powers of telephone interception in Queensland. A consequence of this—and I may be going into a little bit too much detail about the Joint Committee on the Australian Crime Commission and its deliberations in terms of the inquiry into the future impact of serious and organised crime on Australian society—was that the committee recommended in September 2007 in recommendation 4:

… that the Commonwealth and Queensland governments collaborate to expedite the granting of telecommunications interception powers to the Queensland Police Service and the Queensland Crime and Misconduct Commission.

That was the genesis of this bill coming before us today. Certainly, when that recommendation was made, the member for Denison and I were participating in the committee from an opposition perspective, but let me say it was made with the full support of all members of that committee, and I am very pleased that it is coming to fruition today. I heard Mr Jason Wood—I should remember his seat—speak a little earlier. As a former Victorian police officer, he more than aptly knows the value of having these powers of investigation detection available to domestic police services.


The DEPUTY SPEAKER (Mr S Sidebottom)—Mr Wood is the member for La Trobe.


Mr HAYES —Thank you. I am indebted to you, Mr Deputy Speaker. I should also indicate that the member for La Trobe is currently the Deputy Chair of the Joint Committee on the Australian Crime Commission.

This bill now recognises the unique oversight role that will apply in Queensland under the Queensland Public Interest Monitor and the role it has in law enforcement matters in Queensland. Introducing the Public Interest Monitor into the interception regime itself will enable the Public Interest Monitor to make submissions to a judge or the AAT member considering the interception application and to ask questions of officers who are applying for such warrants. The recognition of the Public Interest Monitor in the legislation will pave the way in Queensland for state legislation to be enabled. It will allow for the minister to declare the Queensland Police Service and the Queensland Crime and Misconduct Commission as having the legal ability to exercise interception powers covering those agencies. The minister will be able to make a declaration once they are satisfied that the Queensland arrangements comply with the accountability requirements under section 35 of the Telecommunications (Interception and Access) Act 1979.

The bill will only permit the Public Interest Monitor to play a role when the Queensland state interception agencies—either the Queensland Police Service or the Queensland Crime and Misconduct Commission—are actually seeking to avail themselves of the powers of telephone intercepts using the act. It does not mean, in terms of other areas of operation in concert with either the Australian Federal Police or the Australian Crime Commission, that those powers will need to be oversighted by the Public Interest Monitor of Queensland. There are a number of technical amendments included in this bill, which, I understand, are used to clarify a number of positions, particularly in relation to references to who is authorised to initiate telephone interception—for example, I think it is in the AFP, the term ‘certifying officer’ is used in subsection 5(1) of the Telecommunications Interception Legislation Amendment Act 2008, which includes the commissioner of police and the deputy commissioner of police. The term also includes a senior executive officer of the AFP—that means he is a sworn member of the AFP—who can be also authorised in writing by the commissioner of police.

I do not know about the case of the Hong Kong Bank of Australia Ltd v Australian Securities Commission directly—no doubt the member for Denison, being a Senior Counsel, would be more than aware of it—but I understand from the briefing notes that there was some legal point that turned on whether the Corporations Law could be read as providing a source of power. Not being a lawyer, I will not go to the briefing notes on that. I will let my learned friends take on those matters. What I understand from a layman’s point of view is that there is some potential risk that a court could effectively strike down the provisions that seek to confer power in an authority making an authorisation. This bill seeks to put it beyond doubt and to ensure that where power is being exercised it is legally enforceable. I believe that this provision will do only good in terms of law enforcement and, as a consequence, will do only good for those for whom law enforcement works on behalf of—that is, communities.

We cannot expect our law enforcement agencies to do all the things that we require of them whilst their hands are tied behind their backs. I take the view that the various criminal entities out there, and certainly there are many, who are involved in crime for the purpose of money are in a form of business. I do not want to cast aspersions on businesspeople, but in the business of crime, as with any other business, you would be looking to where you could maximise your return on capital, where you could actually work out the threats that are posed to you or the industry that you are in, and you would adopt a line of least resistance, or at least a position where you could maximise your return on capital. If we have holes in our law enforcement detection systems that deprive us of using proper detection and investigative powers, we are inviting that sort of criminal business to be visited upon us in the areas where there is a void in those powers. This legislation, with the support of both sides of the parliament, seeks to redress that. This legislation seeks to ensure that Queensland police have the same powers of detection and investigative arrangements as apply to other law enforcement agencies throughout the country. This legislation does a lot to ensure that those men and women who put on their uniform and go out day to day to protect us have the powers that they need to ensure that those people who would do us harm have a lesser chance of getting away with it. I think this is a good piece of legislation. It is certainly a good piece of cooperation on both sides of the House in terms of, firstly, detecting the holes that exist in the law enforcement regimes and, secondly, cooperating with a view to remedy that.