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Thursday, 28 August 2008
Page: 4035


Senator BRANDIS (1:11 PM) —The Telecommunications Interception Legislation Amendment Bill 2008 amends the Telecommunications (Interception and Access) Act 1979 and the Surveillance Devices Act 2004 to ensure that certain office holders can validly authorise others to act on their behalf in performing functions under those acts. The bill also proposes a number of minor technical amendments which tidy the telecommunications interception and access regime so that it is current and accurately reflects the status of related regimes.

The genesis of the bill is a decision of the full court of the Federal Court in the case of Hong Kong Bank of Australia against the Australian Securities Commission, a decision of that court as long ago as 1992. The court held that a provision of the Corporations Law that defined a ‘prescribed person’ to include a person authorised by the commission to perform certain functions could not be construed so as to confer the power to make the initial authorisation.

The bill proposes to amend the acts to correct a lacuna by including definitions of ‘certifying officer’, ‘certifying person’ and ‘member of the staff of a Commonwealth royal commission’. Each category of person may now be authorised to perform functions under the acts. There is some uncertainty as to whether those definitions might fall foul of the rules of construction outlined by the court in the Hong Kong Bank case. The bill seeks to amend the acts to include specific powers to authorise the relevant persons to perform the defined functions. The bill also makes some technical amendments to maintain the currency of the telecommunications interception and access regime and to support the new Victorian Office of Police Integrity. There are two main provisions within the amendment: schedule 1, which relates to the Surveillance Devices Act 2004, and schedule 2, which relates to the Telecommunications Interception Act 1979.

The only mystery about this bill, which is uncontroversial, is how it came to be that an anomaly in the legislation which was created by a judicial decision as long ago as 1992 was not detected before now. I consulted the Bills Digests prepared by the Parliamentary Library and they merely tell us that a drafting direction in 2006 which generated this bill was the result of provisions coming to the attention of drafters at the Office of Parliamentary Counsel while preparing a prior bill. The Attorney-General’s Department subsequently moved to eliminate the risk that the Office of Parliamentary Counsel identified. I think the parliament is indebted to the alert legislative draftsmen who spotted a lacuna that had lurked beneath the statute law of the Commonwealth like a sunken battleship for some 16 years, imperilling litigants passing across its still waters, and have now at last eliminated that lacuna from the law. The opposition supports the bill.