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Telecommunications Interception and Other Legislation Amendment Bill 2003

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2002 - 2003

 

 

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

TELECOMMUNICATIONS INTERCEPTION AND OTHER

LEGISLATION AMENDMENT BILL 2003

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Attorney-General,

 the Honourable Daryl Williams AM QC MP)



TELECOMMUNICATIONS INTERCEPTION AND OTHER

LEGISLATION AMENDMENT BILL 2003

 

 

OUTLINE

 

This Bill amends the Telecommunications (Interception) Act 1979 , the Financial Transaction Reports Act 1988 and the Crimes Act 1914 to provide the proposed new Western Australian Corruption and Crime Commission (the Commission) with relevant law enforcement powers to perform its functions, consistent with the powers available to the body that it will replace, the Western Australian Anti-Corruption Commission.  

 

Specifically, the Bill amends the Telecommunications (Interception) Act 1979 to include the proposed Commission and proposed Parliamentary Inspector of the Corruption and Crime Commission as eligible authorities for the purposes of that Act.  This will have the effect of enabling both the Commission and the Parliamentary Inspector to receive intercepted information relevant to the performance of their functions from intercepting agencies.  In addition, the amendments will enable the Commission to be declared to be an intercepting agency in its own right allowing it to obtain and execute telecommunications interception warrants subject to fulfilment of specified preconditions.

 

The Bill amends the Financial Transaction Reports Act 1988 to give the Commission access to financial transaction reports information by including the Commission within the meaning of law enforcement agency for the purposes of such access.

 

The Bill amends the Crimes Act 1914 to enable the Commission to authorise a person to acquire and use evidence of an assumed identity by including the Commission as a participating agency for the purposes of the assumed identities scheme set out in Part IAC of that Act.

 

The Bill also amends the Telecommunications (Interception) Act 1979 to include slavery, sexual servitude, deceptive recruiting and aggravated people smuggling offences set out in Division 270 and section 73.2 of the Criminal Code as offences in relation to which a telecommunications interception warrant may be sought.  This will enable telecommunications interception warrants to be sought in connection with the investigation of these offences.

 

 

 

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 sets out a table specifying the times at which the various parts of the Bill commence.  The table specifies that the formal provisions set out in clauses 1 to 3 of the Bill commence on the day on which the Act receives Royal Assent.

 

The clause further provides that Schedule 1 to the Bill commences on a date to be fixed by Proclamation and, in default of proclamation within 12 months of the day on which the Act receives Royal Assent, that the provisions in the Bill are automatically repealed. 

 

Schedule 1 to the Bill contains amendments to include reference to the proposed Western Australian Corruption and Crime Commission in the Financial Transaction Reports Act 1988, the Crimes Act 1914 and, in the case of the Telecommunications (Interception) Act 1979 , reference to both the Commission and the proposed Parliamentary Inspector of the Corruption and Crime Commission.  Both the Commission and the office of the Parliamentary Inspector are proposed to be established by the State of Western Australia in legislation currently before the Western Australian legislature. 

 

Commencement of the amendments in Schedule 1 by proclamation will ensure that those provisions providing for the Commission and Parliamentary Inspector do not commence until those entities are formally constituted and, in the event that those bodies are not formally created within 12 months after Royal Assent to the Act, that those provisions are automatically repealed.  Provision for repeal after 12 months is considered appropriate to accommodate further consideration of the relevant legislation by the Western Australian Parliament.

 

The Clause further provides that Schedule 2 to the Bill, which has the effect of enabling telecommunications interception warrants to be sought in connection with the investigation of slavery, sexual servitude, deceptive recruiting and aggravated people smuggling offences set out in Division 270 and section 73.2 respectively of the Criminal Code , commences on the day on which the Act receives Royal Assent .

 

 

Clause 3:  Schedules

 

Clause 3 provides that each Act specified in a schedule is amended as set out in the schedule concerned.

 

 



Schedule 1 - Amendments relating to the Western Australian Corruption and Crime Commission

Crimes Act 1914

Item 1

This item amends the definition of State or Territory participating agency in subsection 15XA(1) of the Crimes Act 1914 to include a reference to the Western Australian Corruption and Crime Commission (the Commission).  The effect of the amendment is to enable authorised officers of the Commission to authorise persons to acquire and use evidence of an assumed identity, in accordance with the assumed identities scheme set out in the Act. 

Financial Transaction Reports Act 1988

Item 2

This item amends subsection 27(16) of the Financial Transaction Reports Act 1988 by adding a new paragraph setting out a reference to the Commission.  The effect of the amendment is to include the Commission as a law enforcement agency for the purpose of section 27 of that Act, which makes provision for access by specified persons and agencies to financial transaction reports information. 

Item 3

This item amends subsection 27(17) of the Financial Transaction Reports Act 1988 by adding a new paragraph setting out a reference to an officer of the Commission.  The effect of the amendment is to include persons falling within the definition of an officer of the Commission, as set out in the Corruption and Crime Commission Act 2003 of Western Australia, within the meaning of a law enforcement officer for the purposes of section 27 of that Act, which makes provision for access by specified persons and agencies to financial transaction reports information.  The amendment will enable the Commissioner and staff of the Commission to have access to financial transaction reports information in accordance with the provisions set out in that Act.

Telecommunications (Interception) Act 1979

Item 4

This item amends the definition of certifying officer set out in subsection 5(1) of the Telecommunications (Interception) Act 1979 (the Act) to include a new paragraph setting out a definition of the term in the case of the Commission.  

 

New paragraph (i) provides that, in the case of the Commission, certifying officer means the Commissioner of the Commission, or 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 1994 (WA) where that officer has been authorised in writing by the Commissioner to be a certifying officer for the purposes of the definition.  The effect of the  amendment to the definition will be to permit both the Commissioner and senior officers authorised by the Commissioner to perform the functions conferred upon certifying officers by the Act.

Item 5

This item amends the definition of chief officer set out in subsection 5(1) of the Act to include new paragraphs setting out a definition of the term in the case of the Commission and the Parliamentary Inspector to the Corruption and Crime Commission (the Parliamentary Inspector).

 

In the case of the Commission, the chief officer is defined as the Commissioner and, in the case of the Parliamentary Inspector, the chief officer is defined as the Parliamentary Inspector personally.  The effect of the amendment to the definition will be to confer upon the respective holders of these offices the functions and duties imposed upon the chief officers of eligible authorities.

Item 6

This item amends subsection 5(1) of the Act to define the term Corruption and Crime Commission as the Corruption and Crime Commission established under the Corruption and Crime Commission Act.  A definition of Corruption and Crime Commission Act is included by the amendment at item 7.  The effect of the amendment is to clearly define the shorthand description of the Commission to be used throughout the Act.

Item 7

This item amends subsection 5(1) of the Act to define the term Corruption and Crime Commission Act as the Corruption and Crime Commission Act 2003 of Western Australia.  The effect of the amendment is to clearly define the shorthand description of the Act establishing and conferring functions upon both the Commission and Parliamentary Inspector to be used throughout the Act.

Item 8

This item amends paragraph (d) of the definition of eligible authority set out in subsection 5(1) of the Act to include a reference to both the Commission and the Parliamentary Inspector.  The effect of the amendment is to permit both the Commission and the Parliamentary Inspector to receive intercepted information in certain circumstances. 

 

In addition, section 34 of the Act sets out process whereby, subject to satisfactory compliance with certain preconditions set in section 35, an eligible authority may be declared to be an agency for the purposes of the Act, allowing it to seek and execute telecommunications interception warrants in its own right.  In this manner the Commission may, subject to satisfaction of the specified preconditions, be declared an agency in the same way as the body it will replace, the Anti-Corruption Commission.  It is not however anticipated that the Parliamentary Inspector be declared to be an intercepting agency in its own right, but rather that it receive intercepted information in connection with its functions in relation to misconduct.  Accordingly, a number provisions in the Act that are only relevant in the case of an eligible authority that has become an agency have not been amended to accommodate the Parliamentary Inspector.



Item 9

This item amends the definition of officer set out in subsection 5(1) of the Act to include new paragraphs setting out a definition of the term in the case of the Commission and the Parliamentary Inspector.

 

In the case of the Commission, an officer is defined as an officer of the Commission and, in the case of the Parliamentary Inspector, an officer is defined as the Parliamentary Inspector or an officer of the Parliamentary Inspector.  The terms officer of the Commission and officer of the Parliamentary Inspector are separately defined by the amendments at items 10 and 11, which pick up the definitions of those terms as set out in the Corruption and Crime Commission Act.  In particular, unlike other eligible authorities under the Act, the definition of officer in the case of the Commission inserted by this amendment does not separately identify the Commissioner as the definition of officer of the Commission in the Corruption and Crime Commission Act, picked up by the amendment at item 10, includes the Commissioner.

Item 10

This item amends subsection 5(1) of the Act to define the term officer of the Corruption and Crime Commission as an officer of the Commission within the meaning of the Corruption and Crime Commission Act.  The effect of the amendment is to pick up the meaning of the term officer as set out in the legislation creating the Commission and clearly define the concept of officer of the Commission used in item 9 to define officer in the context of that entity.  

Item 11

This item amends subsection 5(1) of the Act to define the term officer of the Parliamentary Inspector as an officer of the Parliamentary Inspector within the meaning of the Corruption and Crime Commission Act.  The effect of the amendment is to pick up the meaning of the term officer as set out in the legislation establishing the office of the Parliamentary Inspector and thereby clearly define the concept of officer of the Parliamentary Inspector used in item 9 to define officer in the context of that entity. 

Item 12

This item amends subsection 5(1) of the Act to define the term  Parliamentary Inspector  of the Corruption and Crime Commission as the Parliamentary Inspector within the meaning of the Corruption and Crime Commission Act.  The effect of the amendment is to pick up the meaning of the term Parliamentary Inspector as set out in the legislation establishing the office of the Parliamentary Inspector and thereby clearly define the shorthand description of the Parliamentary Inspector to be used throughout the Act.

Item 13

This item amends the definition of permitted purpose set out in subsection 5(1) of the Act to include new paragraphs setting out a definition of the term in the case of the Commission and the Parliamentary Inspector.

In the case of the Commission, the definition of permitted purpose is expanded to include a purpose connected with an investigation under the Corruption and Crime Commission Act into whether misconduct, as defined in that Act, has or may have occurred, is or may be occurring, is or may be about to occur, or is likely to occur and a report on such an investigation.   The description of these permitted purposes of the Commission is consistent with the functions of the Commission in relation to misconduct as set out in the Corruption and Crime Commission Act.

In the case of the Parliamentary Inspector, the definition of permitted purpose is expanded to include a purpose connected with a dealing with a matter of misconduct, as defined in the Corruption and Crime Commission Act, on the part of the Commission, a Commission officer or an officer of the Parliamentary Inspector.  

In defining specific permitted purposes for each of the Commission and Parliamentary Inspector, the amendments distinguish between an investigation on the part of the Commission, and dealing with a matter of misconduct on the part of the Parliamentary Inspector.  This distinction reflects the different roles and functions of the Commission and Parliamentary Inspector as set out in the Corruption and Crime Commission Act.  In particular, unlike the Commission, the Parliamentary Inspector does not have a function of conducting investigations, but rather deals with matters of misconduct.

The extensions to the scope of the term permitted purposes have the effect of making specific provision for both the Commission and the Parliamentary Inspector, enabling those bodies to deal with intercepted information in connection with one of the identified purposes.  The extension to permitted purposes supplements the general permitted purposes set out in paragraph (a) of the definition.  Those purposes are limited to investigations of specified criminal offences and certain proceedings.  The additions to permitted purposes in the context of the Commission and Parliamentary Inspector accommodate those uses of intercepted material which may not be covered by the general definition but are nevertheless appropriate uses of intercepted material in the context of the functions of those bodies.  In particular, the roles of both bodies in relation to misconduct extend beyond misconduct amounting to a serious criminal offence.  The extension to the definition would permit the Commission and Inspector to use intercepted information in the performance of their respective functions with respect to misconduct.

Item 14

This item amends the definition of prescribed investigation set out in subsection 5(1) of the Act to include new paragraphs setting out a definition of the term in the context of the Commission and the Parliamentary Inspector.

 

In the case of the Commission, prescribed investigation is defined to mean an investigation that the Commission is conducting in the performance of its functions under the Corruption and Crime Commission Act.  In the case of the Parliamentary Inspector, prescribed investigation is defined to mean a dealing with a matter of misconduct in the performance of the Inspector’s functions under the Corruption and Crime Commission Act. 

 

In defining a prescribed investigation for each of the Commission and Parliamentary Inspector, the amendments distinguish between an investigation on the part of the Commission, and the dealing with a matter of misconduct on the part of the Parliamentary Inspector.  This distinction reflects the different roles and functions of the Commission and Parliamentary Inspector as set out in the Corruption and Crime Commission Act.  In particular, unlike the Commission, the Parliamentary Inspector does not have a function of conducting investigations, but rather deals with matters of misconduct.

 

The effect of the amendment is to define the term prescribed investigation in the case of both the Commission and the Parliamentary Inspector.  That concept is relevant in defining the concepts of relevant offence and relevant proceeding for those bodies, which are in turn central to the circumstances in which intercepted information may be communicated to and used by the Commission and Parliamentary Inspector.

Item 15

This item amends the definition of relevant offence set out in subsection 5(1) of the Act to include new paragraphs setting out a definition of the term in the context of the Commission and the Parliamentary Inspector.

 

In the case of both the Commission and the Parliamentary Inspector a relevant offence is defined as a prescribed offence that is an offence against the law of Western Australia and to which a prescribed investigation relates.  The meaning of the term prescribed investigation is separately amended by item 14 to define the term in the context of the Commission and Parliamentary Inspector.  The scope of the term relevant offence is important in section 68 of the Act, which defines the circumstances in which the chief officer of an intercepting agency may communicate intercepted information to eligible authorities.

Item 16

This item amends the definition of exempt proceeding set out in section 5B of the Act to include a reference to proceedings of both the Commission and the Parliamentary Inspector.

 

This amendment ensures that lawfully intercepted information can be adduced in evidence in a proceeding of the Commission or Parliamentary Inspector.  The amendment will permit intercepted information to be adduced in evidence in a hearing by the Commission or Parliamentary Inspector in the course of performing their statutory functions.

Item 17

This item amends section 6A of the Act to include new subparagraphs 6A(1)(c)(x) and (xi).  The effect of the amendment is to specify that, in the case of the Commission and Parliamentary Inspector, a reference in the Act to the investigation of an offence is a prescribed investigation of that body in so far as it relates to that offence.  The provision is an interpretive aid and makes clear how references to the investigation of an offence are to be construed.

Item 18

This item amends the meaning of a reference to a relevant proceeding set out in section 6L of the Act to include a reference to both the Commission and the Parliamentary Inspector.  The item amends paragraph 6L(2)(d), which provides that a reference to a relevant proceeding in the case of the Anti-Corruption Commission and Royal Commission into Police Corruption is a reference to a prosecution for a prescribed offence against the law of Western Australia to which a prescribed investigation relates or related, to also include reference to the Commission and the Parliamentary Inspector.

 

The effect of the amendment is to define a relevant proceeding for both the Commission and the Parliamentary Inspector.  That concept is then relevant in determining the purposes for which the Commission and Parliamentary Inspector may use intercepted information by virtue of its inclusion in defining permitted purposes for all agencies. 

Item 19

This item amends paragraph 39(2) of the Act to include a reference to an officer of the Commission.  Section 39 of the Act sets out the range of persons from each intercepting agency who may apply for telecommunications interception warrants.  The effect of the amendment is to specify that, in the case of the Commission, an officer of the Commission may apply for warrants.  The amendment at item 10 specifies that, for the purposes of the Act, officer of the Commission has the meaning given in the Corruption and Crime Commission Act. 

Item 20

This item amends section 68 of the Act to insert new paragraphs (j) and (k).  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 Corruption and Crime Commission or the Parliamentary Inspector in certain circumstances.

 

In the case of the Commission, the amendment will permit any agency which holds information originally intercepted by that agency and which relates, or appears to relate, to a matter that may give rise to an investigation by the Commission, to communicate that information to the Commissioner of the Commission.  The amendment will permit agencies to communicate information to the Commission that may cause the Commission to initiate an investigation in accordance with its statutory functions.

 

In the case of the Parliamentary Inspector, the amendment will permit any agency which holds information originally intercepted by that agency and which relates, or appears to relate, to a matter that may give rise to a dealing by the Parliamentary Inspector with a matter of misconduct, to communicate that information to the Parliamentary Inspector.  The amendment will permit agencies to communicate information to the Parliamentary Inspector that may cause the Parliamentary Inspector to inquire into misconduct in accordance with that office’s statutory functions.

 

In defining the circumstances in which intercepted information may be communicated to both the Commission and the Parliamentary Inspector, the amendments distinguish between an investigation on the part of the Commission, and the dealing with a matter of misconduct on the part of the Parliamentary Inspector.  This distinction reflects the different roles and functions of the Commission and Parliamentary Inspector as set out in the Corruption and Crime Commission Act.  In particular, unlike the Commission, the Parliamentary Inspector does not have a function of conducting investigations, but rather deals with matters of misconduct.



Schedule 2 - Amendments relating to offences of people smuggling with exploitation, slavery, sexual servitude and deceptive recruiting

Item 1

This item amends the definition of class 2 offence to include offences against section 73.2 and Division 270 of the Criminal Code.    Section 73.2 of the Code provides an aggravated people smuggling offence where the smuggling occurs with the intention that the smuggled person will be exploited after entering the foreign country, where the victim is subjected to cruel, inhuman or degrading treatment or where the conduct in committing the offence gives rise to a danger of death or serious harm to the victim.  

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 offences of slavery, sexual servitude, deceptive recruiting and people smuggling with exploitation as set out in the Criminal Code