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Telecommunications (Interception) Amendment Bill 1999
Bills Digest No. 68 1999-2000
Telecommunications (Interception) Amendment Bill 1999
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any officia l legal status. Other sources should be consulted to determine the subsequent official status of the Bill.
To include the Queensland Crime Commission and the Anti-Corruption Commission of Western Australia in the eligible bodies that may be declared to be able to apply for telecommunications interception warrants and to permanent ly extend the ability of members of the Administrative Appeals Tribunal to issue such warrants.
Prior to 1960 there was no prohibition on the interception of telephonic communications although some activities, such as interference with t elephone lines, would have constituted an offence. A general prohibition on interception was introduced in 1960 with exemptions from the prohibition for interceptions relating to offences against post and telegraph legislation and for national security purposes where warrants were issued only to ASIO.
The Telecommunications (Interception) Act 1979 (the Principal Act) extended the range of matters for which interception warrants could be issued to include offences relating to narcotics punishable under the Customs Act 1901 . The Principal Act also extended the services that could be intercepted to include data transmission. The last major change in this area occurred in 1987 when the ability to apply for an interception warrant was extended to more general serious offences and to State law enforcement agencies.
Section 39 of the Principal Act provides that an 'agency' is eligible to apply for the issue of a warrant to intercept telecommunications. For this purpose, agency is defined to be a Commonwealth agency or an eligible authority of a State for which a declaration is in force. The agencies able to apply for warrants under these provisions are:
- Australian Federal Police (AFP)
- National Crime Authority (NCA)
- Victoria Police
- NSW Police Force
- NSW Crime Commission
- Independent Commission Against Corruption (ICAC)
- South Australia Police
- Western Australia Police and
- Police Integrity Commission of NSW.(1)
Such agencies must apply to a Judge of a court created by the Commonwealth Parliament or a member of the Adminis trative Appeals Tribunal (AAT) for the warrant (see below).
As well, the Principal Act provides for the Attorney-General, or in emergencies the Director-General of Security, to issue warrants for ASIO to intercept telecommunications.
In relation to agencies other than ASIO, warrants are only to be issued in relation to the investigation of Class 1 or Class 2 offences. These comprise:
Class 1 Offences:
- murder or an equivalent offence
- kidnapping or an equivalent offence
- narcotics offences as defined in the Customs Act 1901
- aiding, abetting, being knowingly concerned or conspiracy in relation to the above offences, and
- offences in regard to which the NCA is conducting a special investigation.
Class 2 Offences:
- offences punishable by a maximum penalty of 7 or more years imprisonment:
- where the conduct involved, or that would be involved, in the commission of the offence would constitute any of a number of serious consequences, such as loss of life, serious personal injury, serious fraud, serious damage to property, trafficking in prescribed substances, serious loss of government revenue or bribery or corruption of a government official, or
- where the offence involves substantial planning between 2 or more people, involves substantial planning and organisation and relates to offences such as theft, tax evasion, currency offences, extortion, company offences, armament dealings and sexual offences against a child under 16
- money laundering offences
- offences relating to Commonwealth computers and data, and
- aiding, abetting, being knowingly concerned or conspiracy in relation to the above offences.
In 1997-98, 675 warrants were issued to agencies other than ASIO (co mpared with 627 in 1996-97) and 9 refused (11 in 1996-97). On an agency basis, in 1997-98 the largest number of warrants, 190 (1 refused), were issued to the AFP, followed by the NSW Police, 140 (0 refused), followed by the NCA with 98 issued (0 refused), the NSW Crime Commission with 83 issued (0 refused) and the Victoria Police, 82 issued (0 refused). In addition, 109 warrants were renewed in 1997-98 and 0 renewal applications were refused.
Most warrants were issued in respect of drug offences, with 196 issued for narcotics offences and 174 for trafficking in drugs, followed by: murder (143), serious personal injury (56), special investigations by the NCA (44), bribery or corruption (39) and organised crime offences (26). Information from the issue of warrants was used in the prosecution of offences in 76.5% of cases where warrants were issued. The 'success rate' varied considerably with the AFP using information gained from warrants in 96.32% of cases issued falling to 51.35% in case of the South Australian Police (the South Australian Police also had a relatively high percentage of warrant applications refused, with 4 of 41 applications being refused in 1997-98). The high 'success rate' of warrants issued to the AFP combined with the relatively large number of warrants issued to that body is responsible for the average 'success rate' being at 76.5% as only one other agency, the NCA with a 'success rate' of 76.58%, was above the average level.(2)
The Principal Act contains a number of provisions related to accountability which aim to prevent the abuse of the issue of warrants and so protect privacy, so far as is consistent with the legal use of interceptions. Before dealing with the accountability provisions, it is worth noting that there is a difference between Class 1 and Class 2 offences in the exercise of the discretion of a Judge or member of the AAT to issue or refuse a warrant. For Class 2 offences, regard must be had to the interference with the privacy of any person likely to have their privacy affected by the issue of the warrant. Such a consideration does not apply to warrants in regard to Class 1 offences (sections 45 and 46 of the Principal Act).
Under the Principal Act the accountability provisions are expressed to apply to Commonwealth agencies only, but section 35 provides that similar reporting will apply to a State or Northern Territory agency declared under section 34 to be able to apply for a warrant to intercept telecommunications. The responsible State Minister, to whom the initial reporting must be made, is also required to report to the Commonwealth Minister responsible for the administration of the Principal Act (ie the Attorney-General). The main accountability measures for Commonwealth agencies fall into the following categories:
- Reports to the Minister:
- Agencies are to keep records of warrants issued details of warrants issued to bodies other than ASIO are to be kept on General Register maintained by the Commissioner of the AFP. The General Register is to be submitted to the Minister every 3 months. Similar requirements apply in relation to warrants that have ceased to be in force and did not lead to criminal proceedings being, or likely to be, commenced.
- The Attorney-General is also to be provided with copies of warrants issued to a Commonwealth or State authority, and copies of instruments revoking the warrant/s. This information is to be provided as soon as practicable after the issue/revocation of a warrant.
- Where a warrant is issued or revoked, details of the usage of the warrant, to whom informatio n gained from the warrant has been communicated, any arrests that have, or are likely to, be made because of information gained from the warrant, and the usefulness of the information obtained are to be provided with 3 months of the issue/revocation.
- A tel ecommunications carrier is to give to the Minister, within 3 months of a warrant ceasing to be in force, details of the action taken by the carrier.
- The Commonwealth Ombudsman has power to check the records of Commonwealth agencies to ensure that the above requirements are complied with. For State agencies, they are only to be declared under section 34 (and therefore able to apply for a warrant) if their establishing law provides for an independent body to scrutinise the agencies records.
In relation to int ercepts undertaken by ASIO, the Attorney-General is to be given information on the extent that the information gained has assisted ASIO within 3 months of the warrant expiring or otherwise ceasing to be in force.
Prior to 1998, warr ants could be issued only by judges of a court created by the Parliament who had consented to act in that role (i.e. consenting judges of the Federal and Family Courts). In 1995 the High Court, in Grollo v Commissioner of Australian Federal Police and Ors (1995) 184 CLR 348, indicated that it may not be appropriate for judges to issue warrants as it could be inconsistent with their judicial function and undermine public confidence in the judiciary. The Chief Justice of the Federal Court subsequently indicated that a majority of the judges of that court had not maintained their consent to be an eligible judge (section 6D of the Principal Act requires judges to consent to their role to issue interception warrants).(3) Amendments contained in the Telecommunications (Interception) and Listening Devices Act 1997 commencing on 1 February 1998 provided for the Deputy President and qualified members of the AAT to issue interception warrants. The amendments also provided for a review of the effect of the 1997 amendments, including those relating to the role of members of the AAT. The review was subsequently expanded by the Department to encompass a review of the operation of the Principal Act. Relevant findings of the review include:
- from 7 February 1998 to 31 March 1999 members of the AAT issued 1034 warrants
- the power of members of the AAT to issue warrants should be continued
- invitations should continue to be issued to new members of the Federal and Family Courts to consent to be able to issue warrants, and
- Federal Magistrates should also be able to issue warrants when the proposed Federal Magistracy is established.(4)
A submission to the Review by the Australian Privacy Charter Council argued that giving of power to issue warrants to members of the AAT was a weakeni ng of the safeguard provisions. It argued that as members of the AAT were appointed for a fixed period and their reappointment was dependent on a government decision, it was not appropriate that they also determine whether a warrant should be issued as they may appear to lack the necessary independence.(5)
The Bill proposes to include in the Queensland Crime Commission (QCC) and the Anti-Corruption Commission of Western Australia (ACC) within the definition of eligible aut horities for the purposes of the Principal Act. As noted above, an eligible authority may be declared to be able to apply for interception warrants.
The QCC was established in 1997 to investigate and gain evidence in relation to relevant criminal activity referred to it by the QCC's management committee. 'relevant criminal activity' is defined to be activity involving:
- criminal paedophilia (i.e. criminal offences relating to sexual offences against children or obscene material involving children)
- major crime - criminal activity involving an offence punishable by imprisonment of 14 years or more, and
- organised crime - offences punishable by imprisonment for 7 years or more involving 2 or more people, substantial planning and organisation or systemic and continuing activity and a purpose to gain profit, power or influence.
The ACC was established in 1988 and has the main functions of:
- receiving or initiating allegations of corruption about police officers or other public officials
- carrying out and making recommendations regarding investigation and further action into such allegations
- to consult and exchange information with other investigative bodies, and
- to assemble evidence regarding its activities.
Schedule 1 of the Bill will amend the Principal Act to include the ACC and QCC in the definition of an eligible authority and to detail the relevant officers in those bodies for the purposes of the Principal Act.
Schedule 2 of the Bill will repeal section 3 of the Telecommunications (Interception) and Listening Devices Act 1997 , which provides that amendments made by that Act to allow members of the AAT to issue warrants cease to have effect at the end of 1999 and that there was to be a review of the amendments made by that Act. The main effect of the amendment is to allow members of the AAT to continue to issue warrants.
1. Telecommunications (Interception) Act 1979 , Report for the year ending 30 June 1998, p. 6. Note that the Police Integrity Commission of NSW was declared to be eligible to apply for warrants after 30 June 1998.
2. Statistics taken from Telecommunications (Interception) Act 1979 , Report for the year ending 30 June 1998.
3. Attorney-General's Department, Telecommunications Interception Policy Review , May 1999, pp. 17-18.
4. ibid., pp. 3 and 95.
5. ibid., p. 18.
29 September 1999
Bills Digest Service
Information and Research Services
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