2002-2003-2004

 

 

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

SENATE

 

 

 

 

 

TELECOMMUNICATIONS (INTERCEPTION) AMENDMENT BILL 2004

 

 

 

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

 

 

Amendments to be Moved

on Behalf of the Government

 

 

 

 

 

 

 

 

(Circulated by authority of the Attorney-General,

the Honourable Philip Ruddock MP)

 

TELECOMMUNICATIONS (INTERCEPTION)

AMENDMENT BILL 2004

 

 

OUTLINE

 

The Telecommunications (Interception) Amendment Bill 2004 as introduced amends the Telecommunications (Interception) Act 1979 to extend the availability of telecommunications interception warrants to additional serious offences, extend the protections of the Act in relation to text and image based communications, facilitate the recording of calls to publicly listed ASIO numbers, and to clarify the application of the Act to delayed access message services.

 

Item 5 of the Bill amends the definition of interception to replace the existing reference to listening to or recording with a reference to listening, recording, reading or viewing a communication in its passage over the telecommunications system.  Items 6 through 9 effected consequential amendments as a result of the extension of the definition of interception proposed by item 5. Amendment 1 omits items 5 through 9 of the Bill.  Amendments 2 and 3 also amend proposed subsection 6(4) inserted by item 10 to make further consequential amendments.  Amendment 5 omits the transitional provision inserted by item 11 of the Bill, which is no longer required following the omission of item 5.

 

Item 10 of the Bill, in addition to other amendments, inserts proposed new subsections 6(5), 6(6) and 6(7) to clarify the application of the Act to communications involving a delay between initiation by the sender and access to the message by the recipient.  Amendment 4 removes these proposed amendments from the Bill.

 

FINANCIAL IMPACT STATEMENT

 

There are no direct financial impacts from these amendments.

Amendment 1

 

Amendment 1 omits items 5 through 9 of the Bill. 

 

Item 5 of the Bill had the effect of extending the existing prohibition against interception from the act of listening to or recording a communication in its passage over the telecommunications system to include reading or viewing a communication in its passage over that system.  The amendments thereby extended the prohibition against interception set out in subsection 7(1) of the Telecommunications (Interception) Act 1979 (the Act) to afford greater protection to text and image based communications.

 

Items 6 to 9 made consequential amendments to subsections 6(2) and 6(2B) of the Act as a result of the extension proposed by item 5.

 

Amendment 1 therefore omits from the Bill the proposed extension of the definition of interception to reading or viewing a communication in its passage over the telecommunications systems.

 

Amendment 2

 

Amendment 2 amends proposed subsection 6(4) inserted by item 10 of the Bill by replacing the proposed reference to ‘listen to, records, reads or views’ with  a reference to ‘listens to or records’.

 

This amendment is consequential upon the amendments proposed at amendment 1 to omit the proposed extension of the definition of interception to include reading or viewing a communication.

 

Amendments 3

 

Amendment 3 amends proposed subsection 6(4) inserted by item 10 of the Bill by replacing the proposed references to ‘listening to, recording, reading or viewing’ a communication with a reference to ‘listening to or recording’ that communication.

 

This amendment is consequential upon the amendments proposed at amendment 1 to remove the proposed extension of the definition of interception to include reading or viewing a communication.

Amendment 4

Amendment 4 amends item 10 of the Bill to omit proposed subsections 6(5), 6(6) and 6(7). 

 

Proposed new subsections 6(5), 6(6) and 6(7) clarify the application of the Act to communications involving a delay between initiation by the sender and access to the message by the recipient by specifying circumstances in which such communications are taken to have ceased their passage over the telecommunications system.  Amendment 4 removes these proposed amendments from the Bill.

 

Amendment 4 therefore omits from the Bill the proposed clarification of the application of the Act to delayed access message services, such as email, SMS messaging and voicemail, which may be stored during their passage over the telecommunications system.  These communications will however continue to be protected by the prima facie prohibition against interception set out in subsection 7(1) of the Act. 

Amendment 5

Amendment 5 omits item 11 of the Bill.

 

Item 11 inserted a transitional provision necessary because of the proposed amendments to the definition of interception effected by item 5.  The transitional provision is no longer necessary as a result of the amendment at amendment 1 to remove item 5 from the Bill.