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Telecommunications Interception Legislation Amendment Bill (No. 1) 2009

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2008

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

TELECOMMUNICATIONS INTERCEPTION LEGISLATION AMENDMENT BILL (NO. 2) 2008

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

(Circulated by authority of the Attorney-General,

the Honourable Robert McClelland MP)

 



TELECOMMUNICATIONS INTERCEPTION LEGISLATION AMENDMENT BILL (NO. 2) 2008

 

OUTLINE

 

1.                   This Bill will amend the Telecommunications (Interception and Access) Act 1979 (the TIA Act) to introduce the Queensland Public Interest Monitor (the PIM) into the interception regime.  This will enable the State of Queensland to legislate for the PIM to be given specific oversight functions for the Queensland Police Service and the Queensland Crime and Misconduct Commission and allow for those agencies to be declared interception agencies under section 34 of the TIA Act. 

                                        

2.                   Under section 35 of the TIA Act, an agency cannot be declared an interception agency unless the Minister is satisfied that the law of the requesting State makes satisfactory provision for the declared agency to comply with specified recordkeeping, reporting and inspection obligations and that the State has entered into an agreement to pay all expenses connected with the issue of warrants issued to the agency.

 

3.                   While the TIA Act provides a national regime for telecommunications interception, this Bill will amend the TIA Act in relation to Queensland agencies to recognise the unique oversight role the PIM plays in law enforcement matters in Queensland.  Currently the PIM plays an oversight role in relation to applications for control orders under Division 104 of the Criminal Code Act 1995 , and applications for warrants including surveillance and covert search warrants under the Crime and Misconduct Act 2001 (Qld), and the Police Powers and Responsibilities Act 2000 (Qld).    

 

4.                   The amendments will allow the PIM to make submissions to the eligible Judge or nominated Administrative Appeals Tribunal (AAT) member considering the application for an interception warrant and to ask questions of an officer representing the Queensland agency applying for the warrant or any other party required to give further information on the application.  These provisions will only operate where the applicant is representing a declared Queensland agency.  The PIM’s power to make submissions will be complemented by a requirement on the decision-maker considering an application by a Queensland agency, to consider the PIM’s view in deciding whether or not to issue an interception warrant. 

 

5.                   To minimise the risk of conflict of interest, the Bill will require that a person who is involved in making submissions or asking questions in relation to an application must not be involved in the subsequent inspections of these records. 

 

6.                   The Bill also specifies that the TIA Act does not affect the operation of Queensland law to the extent that it may authorise or require Queensland agencies to notify the PIM of either a proposed or actual interception warrant application, notify the PIM of any information that may relate to such applications and provide documentation that may relate to such applications.

7.                   The Bill will also make minor and technical amendments to:

-         correct an error introduced by the Telecommunications Interception Legislation Amendment Act 2008 that unintentionally limited a Police Force of a State’s delegation powers in relation to a ‘certifying offi cer’ as defined by the TIA Act, and

-         amend the definition of ‘certifying officer’ in subsection 5(1) of the TIA Act and the definition of ‘appropriate authorising officer’ in paragraph 6(1)(g) of the Surveillance Devices Act 2004 to reflect changes to the structure of the Queensland Crime and Misconduct Commission. 

 

FINANCIAL IMPACT STATEMENT

 

These measures will have no financial impact until the Minister makes a declaration under section 34 of the TIA Act declaring eligible Queensland authorities to be an agency for the purposes of the TIA Act.  Once this has occurred and Queensland agencies start applying for interception warrants there will be an ongoing financial impact.  This will include a financial impact on the Federal and Family Courts and the Administrative Appeals Tribunal in regard to interception warrant applications made by declared Queensland agencies.

 

 

NOTES ON CLAUSES

 

Clause 1 Short title

 

Clause 1 is a formal provision specifying the short title of the Bill.  It provides that the Act may be cited as the Telecommunications Interception Legislation Amendment Act (No. 2) 2008.

 

Clause 2 Commencement

 

This clause provides for the commencement of the Bill.

 

Sections 1 to 3 will commence on the day on which this Act receives the Royal Assent.

 

Schedule 1 will commence on the later of:

(a) the day this Act receives the Royal Assent; and

(b) the commencement of the Telecommunications Interception Act 2009 of Queensland.

 

However, Schedule 1 will not commence at all if the Telecommunications Interception Act 2009 of Queensland does not commence.

 

Schedule 2 will commence on the day after this Act receives the Royal Assent.

 

Clause 3 Schedule(s)

 

Clause 3 provides that each Act that is specified in a Schedule is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1 - Public Interest Monitor of Queensland

 

Telecommunications (Interception and Access) Act 1979

 

Item 1 - Subsection 5(1)

 

Item 1 inserts a new definition of ‘deputy PIM’ into subsection 5(1) of the TIA Act.  Deputy PIM is defined to mean a deputy public interest monitor appointed under either or both of the Crime and Misconduct Act 2001 (Qld) and the Police Powers and Responsibilities Act 2000 (Qld).

 

Item 2 - Subsection 5(1)

 

Item 2 inserts a new definition of ‘PIM’ into subsection 5(1) of the TIA Act.  PIM is defined to mean a public interest monitor appointed under either or both of the Crime and Misconduct Act 2001 (Qld) and the Police Powers and Responsibilities Act 2000 (Qld).

 

 

Item 3 - After paragraph 35(1)(h)

 

Section 35 of the TIA Act sets out the conditions State law must meet before the Minister can declare an eligible State authority to be an interception agency under section 34 of the TIA Act.  Paragraph 35(1)(h) of the TIA Act requires regular inspections of an eligible authority’s records.

 

Item 3 inserts new paragraph 35(1)(ha) of the TIA Act to specify a new condition which requires that a person who performs or exercises a power set out in section 45 of the TIA Act must not undertake an inspection function in relation to any records that relate to the application.  This will ensure that the same person cannot be involved in both the application process for an interception warrant and the subsequent inspection in relation to that warrant.  This is to minimise any risk of conflict of interest.

 

Item 4 - At the end of Division 3 of Part 2-5 of Chapter 2

 

Division 3 of Part 2-5 of Chapter 2 of the TIA Act deals with applications for interception warrants authorising agencies to intercept telecommunications.  Section 39 of the TIA Act sets out the conditions according to which an eligible agency may apply for an interception warrant.

 

Item 4 inserts new sections 45 and 45A at the end of Division 3 of Part 2-5 of Chapter 2. 

 

New section 45 specifies additional conditions which only apply if a Queensland interception agency applies to an eligible Judge or nominated AAT member for an interception warrant under section 39 of the TIA Act.  In recognition of the oversight role the PIM plays in law enforcement matters in Queensland, new section 45 permits the PIM to be present when a declared Queensland interception agency applies for an interception warrant and make oral or written submissions to the Judge or nominated AAT member about certain matters in relation to the application.  The PIM can also question the applicant, or any other person who is required to give further information in connection with the application, in the presence of the eligible Judge or nominated AAT member for the purpose of making a submission. 

 

New section 45 also enables the PIM to delegate his or her powers under section 45 of the TIA Act to a deputy PIM, to be present at the time an interception warrant application is made, question persons and make submissions.  The deputy PIM must comply with any directions made by the PIM in exercising powers under a delegation. 

 

New section 45A clarifies that the TIA Act is not intended to affect the operation of Queensland law which authorises or requires the PIM to be provided with certain notification, information or documentation in relation to a proposed, or actual, interception warrant application.  This provision preserves the validity of any Queensland law that requires Queensland interception agencies to notify the PIM of an intention to apply for an interception warrant and to provide relevant information, or which requires Queensland interception agencies to notify the PIM that an actual application will be made and to provide the PIM with relevant information.   

 

Item 5 - At the end of paragraphs 46(2)(a) to (d)

 

Subsections 46(2) and 46A(2) of the TIA Act set out an exhaustive list of matters an issuing authority must have regard to when considering whether to issue a warrant. 

 

Item 5 inserts the word ‘and’ after each paragraph to ensure that each requirement is read inclusively. 

 

Item 6 - At the end of paragraphs 46(2) and 46A(2)

 

Item 6 inserts new paragraph (g) after subsections 46(2) and 46A(2).  This new paragraph will require the eligible Judge or nominated AAT member considering an application for a warrant by a Queensland interception agency to also have regard to any submission made by the PIM in relation to the application.

 

 

Schedule 2 - Other amendments

 

Surveillance Devices Act 2004

 

Item 1 - Subsection 6(1) (paragraph (g) of the definition of appropriate authorising officer )

 

Subsection 6(1) of the Surveillance Devices Act 2004 is the interpretation section of that Act.  The definition of ‘appropriate authorising officer’ in subsection 6(1) refers to persons who are authorised in writing by a designated officeholder to perform certain functions on their behalf under that Act. 

 

Item 1 replaces paragraph 6(1)(g) to amend the definition of ‘appropriate authorising officer’ to reflect changes to the structure of the Queensland Crime and Misconduct Commission. 

 

Telecommunications (Interception and Access) Act 1979

 

Item 2 - Subsection 5(1) (paragraph (f) of the definition of certifying officer )

 

The definition of ‘certifying officer’ in paragraph 5(1)(f) of the TIA Act refers to persons who are authorised in writing by a designated officeholder to perform certain functions on their behalf.  Item 2 replaces paragraph 5(1)(f) to amend the definition of ‘certifying officer’ to reflect changes to the structure of the Queensland Crime and Misconduct Commission. 

 

Items 3 and 4 - Subsection 5AC(4)

 

Section 5AC of the Act expressly confers power on designated officers to authorise other persons to act on their behalf as a ‘certifying officer’ for the purposes of the TIA Act.  Due to a drafting error, the effect of subsection 5AC(4) of the TIA Act is that the Commissioner of a State police force can only authorise certain members of the Australian Federal Police to be a ‘certifying officer’. 

 

Item 3 amends subsection 5AC(4) of the TIA Act to clarify that the Commissioner of a State police force can authorise a State police force officer whose rank is equivalent to that of a senior executive Australian Federal Police employee who is a member of the Australian Federal Police to be a ‘certifying officer’ for the purposes of the TIA Act.   

 

Item 4 preserves existing authorisations until revoked and ensures the validity of actions previously taken by persons authorised to act as a ‘certifying officer’ under subsection 5AC(4) of the TIA Act as the provision existed before the commencement of this Bill.  This item treats previous authorisations as if they had been made under subsection 5AC(4) of the TIA Act as amended by Item 3 of this Bill.