2002-2003-2004

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

SENATE

 

 

 

 

 

SURVEILLANCE DEVICES BILL 2004

 

 

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

 

 

 

 

 

Amendments and New Clauses to be Moved on behalf of the Government

 

 

 

 

 

 

 

 

(Circulated by authority of the Attorney-General,

the Honourable Philip Ruddock MP)

SURVEILLANCE DEVICES BILL 2004

 

General Outline

 

The amendments to the Surveillance Devices Bill 2004 take into account the recommendations of the Senate Legal and Constitutional Legislation Committee’s Report on the provisions of the Bill tabled on 27 May 2004. For example, the approval of an emergency authorisation for the use of a surveillance device in the absence of a warrant by an eligible Judge or nominated AAT member is now to occur within 48 hours of the issue of the authorisation.   The amendments propose a more structured regime for the destruction of records which are no longer required for a purpose permitted by the Bill.  The Bill also now specifically states that people who suffer loss or injury from the unlawful use of surveillance devices by the AFP or ACC may be entitled to compensation.

 

The amendments also accommodate a request from relevant States that non-police law enforcement and anti-corruption agencies be recognised as ‘law enforcement agencies’ for the purposes of the Bill. These bodies, with the exception of the Queensland Crime and Misconduct Commission, already have telephone interception powers.  Thus, such agencies can apply for surveillance device warrants and access the emergency authorisation provisions of the Bill in the same way as State and Territory police forces will be able to.

 

The amendments also correct some typographical and other minor errors.

 

 

Financial Impact Statement

 

There are no expenditure implications additional to those outlined in the original explanatory memorandum to the Bill for which provision has been made in the 2004/2005 budget.

 

 

Abbreviations used in the Supplementary Explanatory Memorandum

 

AAT                            Administrative Appeals Tribunal

ACC                            Australian Crime Commission

AFP                             Australian Federal Police

AFP Act                      Australian Federal Police Act 1979

EA                               Emergency Authorisation

LD                               Listening device

LEA                             Law Enforcement Agency

LEO                             Law Enforcement Officer

NSW                           New South Wales

QLD                            Queensland

SD                               Surveillance device

TD                               Tracking device                       

TI                                 Telecommunications Interception

NOTES ON CLAUSES

 

Items 1 - 13

Clause 6 Definitions

 

1.         An ‘ appropriate authorising officer’ is a term used in Part 3 of the Bill with respect to emergency authorisations (EAs), and in Part 4 with respect to tracking device (TD) authorisations. The definition of such an officer reflects the intrusive nature of surveillance devices (SDs) and the corresponding need to have their use sanctioned by an appropriately senior person within the law enforcement agency (LEA). Thus, an ‘appropriate authorising officer’ is restricted to those officers who are senior executive service employees in the AFP, the ACC and State and Territory police forces, for example an ‘appropriate authorising officer’ includes the Commissioner of the AFP, the Commissioner of the each State or Territory police force and the Chief Executive Officer of the ACC.

 

2.         An ‘appropriate authorising officer’ is also to include senior officers of other

non-police LEAs including, among others, the NSW Independent Commission against Corruption and the QLD Crime and Misconduct Commission. For these agencies the Commissioner and other senior executive service personnel will also be ‘appropriate authorising officers’.

 

3.         Items 4, 5, 8, and 9 import the definitions of the ‘Corruption and Crime Commission’, the ‘Crime and Misconduct Commission’, the ‘Independent Commission against Corruption’, the ‘New South Wales Crime Commission’, and the ‘Police Integrity Commission’ established by their respective enabling Acts.

 

4.         A ‘law enforcement agency’ is defined as the AFP, ACC, State and Territory police forces, as well as non-police LEAs including the NSW Crime Commission, the Independent Commission against Corruption, the Police Integrity Commission, the Crime and Misconduct Commission and the Corruption and Crime Commission .        

 

5.         Where a State or Territory’s normal processes would require the approval of a body for a SD warrant application, for example the QLD Public Interest Monitor, that State or Territory can consult that body before making an application to an eligible Judge or AAT member and that body can be present when the application is determined. There is nothing in the Bill to prevent additional accountability.

 

6.         The definition of ‘law enforcement officer’ also includes, in paragraphs (d) to (h) inclusive, officers of non-police LEAs. Officers of the Independent Commission against Corruption, the Police Integrity Commission and the Corruption and Crime Commission, as well as Members of the NSW Crime Commission and authorised Commission Officers of the Crime and Misconduct Commission, as defined by their respective enabling Acts, are ‘law enforcement officers’ for the purposes of the Bill.

 

7.         Item 11 further amends clause 6. ‘State or Territory law enforcement officer’ is defined as a subset of the definition of ‘law enforcement officer’, namely paragraphs (d) - (h) inclusive, as listed above, to cover officers of the non-police agencies.

8.         Item 13 amends the definition of the ‘law enforcement officer primarily responsible for executing a warrant, emergency authorisation or tracking device authorisation’. The Chief Officer of the relevant LEA (or their delegate under clause 63), by instrument in writing, can nominate a new officer as the person primarily responsible for the execution of a warrant or emergency or tracking device authorisation. Thus, the fact that the original person nominated may resign, be transferred, or is otherwise not able to execute the warrant or authorisation will not be fatal to its execution.

 

9.         Item 10 amends the definition of ‘recovery order’ to mean an order made under section 67U of the Family Law Act 1975 or, alternatively, an order for a warrant for the apprehension or detention of a child under Regulations to the Family Law (Child Abduction Convention) Regulations 1986 .  This widens the definition to cover orders made by court other than the Family Court, for example, the Federal Magistrates Service. It also includes children who may have been removed to Australia from another country.

 

10.       Item 2 removes the definition of ‘business day’ from clause 6 as it is a consequential amendment of the change to clause 33.

 

 

Item 14

Clause 7 State offence that has a federal aspect

 

11.       Clause 7 imports the definition of a ‘State offence with a federal aspect’ from existing legislation and, in doing so, renders the definition consistent with equivalent definitions of the phrase found in the AFP and ACC Acts.

 

 

Item 15

Clause 18 What a surveillance device warrant authorises

 

12.       Subclause 18(3)(g) permits assistance or technical expertise to be given to the person who is primarily responsible for the execution of the warrant. The existing subclause refers to the “person named in the warrant” who could be either the applicant or the person responsible for its execution.

 

 

Item 16

Clause 30 Emergency authorisation - risk of loss of evidence

 

13.       Provision is also made for an EA to be sought for child sex tourism offences where the use of a SD is necessary to prevent the loss of any evidence relevant to the investigation of such offences.

 

 

Item 17

Clause 33 Application for approval of emergency authorisations

 

14.       Where a device has been used for surveillance under an EA given by an appropriate authorising officer, approval of that use must subsequently be sought from an eligible Judge or nominated AAT member within 48 hours from when the authorisation was given. This amendment gives effect to Recommendation 1 of the Senate Legal and Constitutional Legislation Committee’s Report into the Bill (at paragraph 3.36 of the Report).  

 

Items 18 - 21

Clause 38 Use of surveillance decides without warrant for listening to or recording words in limited circumstances

 

15.       Subclauses 38(4) and (5) permit a non-LEO to wear a LD to listen or record a conversation of which they are a participant when assisting a LEA in the investigation of a relevant offence or to locate and recover a child who is the subject of a recovery order. The limitations imposed on non-LEOs using a LD without a warrant are the same as those imposed on a LEO in the same situation. This means that a non-LEO must be the speaker of the words or the person to whom they are speaking must intend, or should reasonably expect the words to be heard by the non-LEO or class or group of such persons for the use of the LD to be lawful. This reproduces the effect of the existing subsection 12F(2) of the AFP Act 1979.

 

16.       In extending this power beyond the use of LDs by LEOs, informers can lawfully wear a LD when assist police, for example, in a controlled operation.

 

 

Items 22 - 23

Clause 39 Use and retrieval of tracking devices without warrant in certain circumstances

 

17.       Subclause 39(6A) provides that a TD authorisation given under subclauses 39(1) or (3) is to indicate the period for which the authorisation is to remain in force. As with SD and retrieval warrants, this period must not exceed 90 days.

 

18.       Subclause 39(9) provides that various parts of clause 18 are to apply to a TD authorisation as if reference in those provisions to a ‘SD warrant’ and to a ‘surveillance device’ were references to a ‘TD authorisation’ authorising the use of a TD and a ‘tracking device’ respectively . Thus, a TD authorisation may authorise the use of a TD on specified premises (including the exterior of a vehicle), in or on a specified object or class of object, or in respect of conversations, activities or the location of a specified person or a person of unknown identity.

 

19.       Under subclause 18(2), a TD authorisation will authorise the installation, use and maintenance of a TD which is used on specified premises or on a specified object, or class of objects, as referred to in the authorisation.   A TD authorisation will also authorise the installation, use and maintenance of TD specified in the warrant on premises where a person is reasonable believed to be or is likely to be.

 

 

 

 

 

 

 

Item 24

Clause 41 Definitions

 

20.       Item 24 amends the definition of an ‘appropriating consenting official’ to mean an official of a foreign country with authority in that country to give consent to the use of SDs in that country or on a vessel or aircraft registered under the laws of that foreign country. Previously, the person had to have the power to authorise the extraterritorial use of SDs rather than the use of such devices within that jurisdiction which is the approval actually required.

 

 

Items 25

Clause 45 Prohibition on use, recording, communication or publication of protected information or its admission in evidence

 

21.       Item 25 amends subclause 45(5) by providing a further exception to the restrictions on the use, communication and publication of protected information. Item 25 permits the use, recording and communication of protected information for the purposes of the functions conferred upon the Queensland Public Interest Monitor by either the Police Powers and Responsibilities Act 2000 (QLD) or the Crime and Misconduct Act 2001 (QLD), or both, so it can determine compliance by QLD LEAs with either of those Acts or with the Bill. 

 

 

Item 25 - 27

Clause 46 Dealing with records obtained by use of surveillance devices

 

22.       Item 26 amends clause 46 to give effect to Recommendation 5 of the

Senate Legal and Constitutional Legislation Committee’s report into the provisions of the Bill, namely that: ‘[3.78] The Committee recommends that the legislation be amended to include a time limit for retention of material of five years, subject to the agency being required to provide justification, certified by the CEO, as to why the material is still needed ’.

 

23.       This amendment provides that a record or report which comprises ‘protected information’ (which is defined by clause 44) held by a ‘law enforcement agency’ (which is defined in clause 6) must be destroyed as soon as practicable where the Chief Officer is satisfied that (i) no civil or criminal proceedings to which the record or report relates has been, or is likely to be, commenced and; (ii) that the material in the record or report is not likely to be required in connection with an activity in subclause 45(4) or a purpose in subclause 45(5) which relate to, broadly speaking, what can be done with protected information.

 

24.       If the record or report containing the protected information is retained because the requirements in subclause 46(1)(b) paragraph (i) are not met after a period of 5 years from the making of the record or report, and within each period of 5 years after that, the record or report must be destroyed unless the CEO is satisfied that paragraph 46(1)(b)(i) continues not to apply.

 

25.       This clause therefore requires that any material comprising protected information must be subject to active consideration as soon as practicable by the Chief Officer of the LEA and corresponding satisfaction by him or her of the two required matters in 46(1)(b)(i). Furthermore, if the Chief Officer has determined that the protected information should be retained because, for example, a criminal proceeding is likely to be commenced, he or she is then under an on-going obligation to consider within the period of 5 years after the making of the record or report, and within each 5 year period after that, whether it is required for the purposes referred to in paragraph (i).

 

26.       Item 27 amends clause 46, in the same way item 26 does, to give effect to Recommendation 5 of the Senate Legal and Constitutional Legislation Committee’s report into the provisions of the Bill as referred to above at paragraph 22. However, it does so in relation to non-law enforcement agencies to which protected information is communicated under subclauses 45(4) or 45(5). Thus, item 27 obliges the officer in charge of any non-law enforcement agency to destroy records as soon as practicable where the officer in charge of the agency is satisfied that (i) no civil or criminal proceedings to which the record or report relates has been, or is likely to be, commenced and; (ii) that the material in the record or report is not likely to be required in connection with an activity in subclause 45(4) or a purpose in subclause 45(5) which relate to, broadly speaking, what can be done with protected information

 

27.       As with subclause 46(1)(b)(ii), subclause 46(2)(b)(ii) provides that where the record or report containing the protected information is retained because the requirements in subclause 46(2)(b) (i) are not met after a period of 5 years from the making of the record or report, and within each period of 5 years after that, the record or report must be destroyed unless subclause 46(2)(b) paragraph (i) continues not to apply.

 

28.       This clause therefore requires that any material comprising protected information must be subject to active consideration as soon as practicable by the officer in charge of the non-LEA and corresponding satisfaction by him or her of the two matters in 46(2)(b)(i). Furthermore, if the officer in charge has determined that the protected information should be retained because, for example, a criminal proceeding is likely to be commenced, he or she is then under an on-going obligation to consider within the period of 5 years after the making of the record or report, and within each 5 year period after that, whether it is required for the purposes referred to in paragraph (i).

 

29.       An ‘agency other than a law enforcement agency’ could be an agency, such as the Commonwealth Director or Public Prosecutions, which received the material from a LEA under one of the exceptions to the communication prohibition contained in sub-clauses 45(4) and (5).

 

 

Item 28

Clause 55 Inspection of records

 

30.       As an Australian Government body, responsibility for overseeing the ACC will rest with the Commonwealth Ombudsman, including in circumstances where the ACC is exercising powers and functions conferred by State law. Thus, the Ombudsman can determine the extent of the Commission’s compliance with the SD laws of any State or Territory in relation to any warrants or authorisations sought, and surveillance device used by the Commission under those laws.

 

 

Item 29

Clause 59 Delegation by Ombudsman

 

31.       Item 29 amends clause 59 gives power to the Ombudsman to delegate some or all of his powers under Part 6 Division 3 of the Bill (which relate to inspections). This does not include the duty to report to the Minister. Among others, the Ombudsman can delegate, under paragraph 59(1)(b), to ‘a person having similar oversight functions to the Ombudsman under the law of a State or Territory or to an employee responsible to that person’. Such a person would include the Parliamentary Inspector of the Corruption and Crime Commission under the Corruption and Crime Commission Act 2003 (WA), the Inspector of the Police Integrity Commission under the Police Integrity Commission Act 1996 (NSW), the Public Interest Monitor (appointed under either the Police Powers and Responsibilities Act 2000 (QLD) or the Crime and Misconduct Act 2001 (QLD) or both), other comparable anti-corruption bodies as well as State and Territory Privacy Commissioners. 

 

 

Item 30

Clause 61 Report on inspection

 

32.       Item 30 provides that, in relation to the inspection of the ACC’s records under clause 55, the Minister is to cause a copy of the Ombudsman’s report to be sent to the relevant Minister of that State or Territory after the report is laid before each House of Parliament. The Minister will also, as an administrative procedure, send to the relevant State or Territory Minister any report that relates to the use of SDs under the Bill by a State or Territory LEA.

 

 

Item 31

Clause 63A Compensation for loss or injury

 

33.       Where loss or injury to a person flows from the AFP or ACC’s use of a SD, and that use is prohibited under a State or Territory law in which the use occurs and it is not in accordance with this Bill, Item 31 provides that the Commonwealth is liable to pay that person compensation. The amount of compensation is to be agreed to by the Commonwealth and the injured person or, where there is no agreement, by action against the Commonwealth in the courts.