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Telecommunications Interception Legislation Amendment Bill 2001

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1998/1999/2000/2001

 

 

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

TELECOMMUNICATIONS INTERCEPTION LEGISLATION AMENDMENT

BILL 2001

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Attorney-General,

 the Honourable Daryl Williams AM QC MP)



TELECOMMUNICATIONS INTERCEPTION LEGISLATION

AMENDMENT BILL 2000

 

 

OUTLINE

 

This Bill amends the Telecommunications (Interception) Act 1979 to:

·         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;

·         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; 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.

 



 

NOTES ON CLAUSES

 

 

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 16, 22 , 26, 30 and 32, the Act is to commence on the day on which the Act receives Royal Assent.

 

The clause further provides that items 16, 22, 26, 30 and 32 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 that 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

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 replaces the definition of certifying officer 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 4

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 5

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 6

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 7

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 8

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 9

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 10

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 11

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 12

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 13

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 14

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 15

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 16

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 17

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 18

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 19

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 24.

Item 20

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 17.



Item 21

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 24.

Item 22

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 23

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 24

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 25

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 26

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 22 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 27

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 28

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 29

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 30

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 31

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 32

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 33

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 34.

Item 34

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 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 35

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 36.

Item 36

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 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 37

 

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 38

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.