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Telecommunications Interception and Other Legislation Amendment (State Bodies) Bill 2012

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2010 - 2011- 2012

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

Telecommunications Interception and other Legislation

Amendment (State Bodies) Bill 2012

 

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

 

 

Amendments to be moved on behalf of the Government

 

 

 

(Circulated by authority of the Attorney-General,

the Honourable Nicola Roxon MP)



TELECOMMUNICATIONS INTERCEPTION AND OTHER LEGISLATION AMENDMENT (STATE BODIES) BILL 2012

OUTLINE

1.              The Telecommunications Interception and Other Legislation Amendment (State Bodies) Bill 2012 (the Bill) as introduced amends the Telecommunications (Interception and Access) Act 1979 (TIA Act) to:

·          Introduce the Victorian Public Interest Monitor (PIM) into the interception regime, allowing them to receive information, appear and ask questions in applications by Victorian agencies for interception warrants

·          Include the Victorian Independent Broad-based Anti-corruption Commission (IBAC) and Victorian Inspectorate (VI) within the definition of eligible authority

·          Amend the definition of enforcement agency to include the IBAC to allow them to access stored content and telecommunications data, and

·          Make consequential amendments to the Crimes Act 1914, the Privacy Act 1988 and the Taxation Administration Act 1953 to allow the IBAC to receive information from Commonwealth bodies under specific provisions in these Acts. 

 

2.              The Government amendments to the Bill will include the South Australian Independent Commissioner Against Corruption (SA ICAC) within the definition of eligible authority and enforcement agency.

3.              The inclusion of the SA ICAC within the definition of eligible authority will allow the Attorney-General to declare the SA ICAC to be an interception agency if the South Australian legislation meets the requirements in section 35 of the TIA Act.  Under section 35 of the TIA Act, State legislation must set out minimum record keeping requirements and establish an independent oversight regime before a declaration can be made.  Once a declaration is made, the SA ICAC will be able to apply for warrants authorising the interception of communications.

4.              The Independent Commissioner Against Corruption Bill 2012 (ICAC Bill) was introduced into the South Australian Parliament on 02 May 2012.  The ICAC Bill will establish a new integrity body called the Independent Commissioner Against Corruption that will have the functions of identifying and investigating corruption in public administration and prevent or minimise corruption, misconduct and maladministration in public administration.   

 

FINANCIAL IMPACT STATEMENT

The amendments made by the Telecommunications Interception and Other Legislation Amendment (State Bodies) Bill 2012 will have no financial impact on the Commonwealth.  The costs associated with the new State agency will be borne by the State of South Australia.



NOTES ON CLAUSES

Amendment 1 Commencement

Amendment 1 amends the commencement provisions in relation to Schedule 4 of the Bill.

Schedule 4 will commence on the later of the day after this Act receives the Royal Assent and the day that the Independent Commissioner Against Corruption Act 2012 of South Australia (ICAC Act) commences Schedule 4 will not commence if the ICAC Act does not commence.

Amendment 2

Amendment 2 adds Schedule 4 of the Bill.

Schedule 4 - Independent Commissioner Against Corruption

Item 1 - Subsection 5(1) (after paragraph (i) of the definition of certifying officer )

The definition of ‘certifying officer’ in subsection 5(1) of the TIA Act refers to both a designated officeholder who is authorised under the TIA Act to perform certain functions and persons who are authorised in writing by that designated officeholder to perform certain functions on their behalf.

Item 1 inserts paragraph (ia) within the definition of ‘certifying officer’ to define the certifying officer for the SA ICAC for the purposes of the TIA Act.

Item 2 - Subsection 5(1) (after paragraph (l) of the definition of chief officer )

The definition of ‘chief officer’ in subsection 5(1) of the TIA Act refers to the designated officeholder of an agency, an eligible Commonwealth authority or an eligible authority of a State who has certain functions under the TIA Act  in relation to that agency or authority.

Item 2 inserts paragraph (la) within the definition of ‘chief officer’ to define the chief officer for the SA ICAC for the purposes of the TIA Act.

Item 3 - Subsection 5(1) (at the end of the definition of eligible authority )

Item 3 amends the current definition of ‘eligible authority’ to reflect the introduction of legislation into South Australian Parliament that establishes the SA ICAC.  This amendment identifies the SA ICAC as being an eligible authority.  Eligible authorities may receive and use lawfully interception information for specified purposes under the TIA Act. 

Under section 34 of the TIA Act, the Minister may, by legislative instrument and, at the request of the Premier of a State, declare an eligible authority of that State to be an agency for the purposes of the Act where the preconditions for declarations set out in section 35 of the TIA Act are met.      

Under section 35 of the TIA Act, State legislation must set out minimum record keeping requirements and establish an independent oversight regime before a declaration can be made.  Once a declaration is made, the SA ICAC will be able to apply for warrants authorising the interception of communications.



Item 4 - Subsection 5(1) (after paragraph (j) of the definition of enforcement agency )

The definition of ‘enforcement agency’ in subsection 5(1) refers to the Commonwealth and State agencies who can exercise the powers and responsibilities of enforcement agencies under the TIA Act.  These powers include the ability to apply for a stored communications warrant under section 110 of the TIA Act and to authorise disclosure of telecommunications data under sections 178, 179 and 180 of the TIA Act. 

Item 4 inserts paragraph (ja) within the definition of ‘enforcement agency’ to include the SA ICAC.

Item 5 - Subsection 5(1)

Following the passage of legislation in the State of South Australia that established the SA ICAC, Item 5 inserts a new definition of ‘Independent Commissioner Against Corruption’ into subsection 5(1) of the TIA Act.  The SA ICAC is defined to mean the person who is the Commissioner (within the meaning of the Independent Commissioner Against Corruption Act).

Item 6 - Subsection 5(1)

Item 6 inserts a new definition of the ‘Independent Commissioner Against Corruption Act’ into subsection 5(1) of the TIA Act. The Independent Commissioner Against Corruption Act is defined to mean the Independent Commissioner Against Corruption Act 2012 of South Australia.

Item 7 - Subsection 5(1)

Item 7 inserts a new definition of ‘member of the staff of the Independent Commissioner Against Corruption’ into subsection 5(1) of the TIA Act.  A member of the staff of the SA ICAC is defined to mean a person who is an engaged under subsection 9(1) of the ICAC Act of South Australia.

Item 8 - Subsection 5(1) (at the end of the definition of officer )

The definition of ‘officer’ in subsection 5(1) of the TIA Act refers to the designated officeholder of an agency, an eligible Commonwealth authority or an eligible authority of a State who has certain functions under the TIA Act in relation to that agency or authority. 

Item 8 adds paragraph (m) within the definition of ‘officer’ to define officer for the SA ICAC for the purposes of the TIA Act.

Item 9 - Subsection 5(1) (at the end of the definition of permitted purpose )

The definition of ‘permitted purpose’ in subsection 5(1) of the TIA Act refers to the circumstances in which an eligible Commonwealth or State authority can communicate, use or make a record of lawfully intercepted information or interception warrant information under the TIA Act.  The circumstances include the functions of each eligible authority as set out in their governing legislation.

Item 9 adds paragraph (i) within the definition of ‘permitted purpose’.  This amendment will permit the SA ICAC to communicate, use or make a record of lawfully intercepted information or interception warrant information for the investigation under the ICAC Act of corruption in public administration (within the meaning of the ICAC Act) as well as by a report resulting from this investigation.

Item 10 - Subsection 5(1) (at the end of the definition of prescribed investigation )

The definition of ‘prescribed investigation’ in subsection 5(1) of the TIA Act refers to the circumstances in which an investigation is prescribed in relation to an eligible authority and as a result is an investigation of an offence for the purposes of section 6A of the TIA Act. 

Item 10 adds paragraph (k) within the definition of ‘prescribed investigation’.  This amendment will include as a prescribed investigation an investigation that the SA ICAC is conducting in the performance of the Commissioner’s functions under the ICAC Act.

Item 11 - Subsection 5(1) (at the end of the definition of relevant offence )

The definition of ‘relevant offence’ in subsection 5(1) of the TIA Act refers to the offences for which the chief officer of an agency can communicate information obtained by the agency to an eligible authority under section 68 of the TIA Act. 

Item 11 adds paragraph (m) within the definition of ‘relevant offence’ to ensure that the SA ICAC can disclose or receive existing information that relates, or appears to relate, to the commission of a relevant offence.

Item 12 - After subsection 5AC(9)

Section 5AC of the TIA Act expressly confers powers on designated officers to authorise other persons to act on their behalf as a ‘certifying officer’ for the purposes of the TIA Act. 

Item 12 inserts subsection 5AC(9A) into the definition to ensure that the SA ICAC may authorise, in writing, a member of the staff of the SA ICAC who occupies an office or position at an equivalent level to that of an executive employee (within the meaning of the Public Sector Act 2009 of South Australia) to be a certifying officer of the SA ICAC for the purposes of the TIA Act. 

Item 13 - After paragraph 5B(1)(kb)

Under section 74 of the TIA Act, a person may give lawfully intercepted information (other than foreign intelligence information) in evidence in an exempt proceeding.  Subsection 5B(1) of the TIA Act defines ‘exempt proceeding’.

Item 13 inserts paragraph 5B(1)(kb) within the definition of ‘exempt proceeding’ to include proceedings of the SA ICAC.

Item 14 - At the end of paragraph 6A(1)(c)

Subsection 6A(1) of the TIA Act defines the meaning of an ‘investigation of an offence’.

Item 14 inserts subparagraph 6A(1)(c)(xii) into the definition of an ‘investigation of an offence’ to reflect the establishment of the SA ICAC.

Item 15 - At the end of subsection 6L(2)

Subsection 6L(2) of the TIA Act defines the meaning of ‘relevant proceeding’.

Item 15 adds paragraph 6L(2)(e) into the definition of ‘relevant proceeding’ to provide that in the case of the SA ICAC a relevant proceeding is a reference to a proceeding by way of prosecution for a prescribed offence that is an offence against a law of South Australia and to which a prescribed investigation relates or related.

Item 16 - At the end of subsection 39(2)

Subsection 39(2) lists the classes of persons within an agency who are eligible to make an interception warrant application on behalf of the agency.

Item 16 adds paragraph 39(2)(j) to provide that the Commissioner, Deputy Commissioner or a member of staff of the SA ICAC are eligible to make an interception warrant application on behalf of the SA ICAC.

Item 17 - After paragraph 68(j)

Section 68 of the TIA Act provides that a chief officer of an agency may communicate lawfully intercepted information that was obtained by that agency or interception warrant information in prescribed circumstances. 

Item 17 inserts paragraph 68(ja) into the TIA Act to include the SA ICAC.  This means that the chief officer of an agency can communicate to the SA ICAC lawfully intercepted information that was originally obtained by the originating agency or interception warrant information if the information relates, or appears to, relate to a matter that may give rise to an investigation by the SA ICAC.