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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

 

 

CORRECTION TO THE

 EXPLANATORY MEMORANDUM

 

 

 

 

 

(Circulated by authority of the Attorney-General,

the Honourable Nicola Roxon MP)



Statement of Compatibility with Human Rights

Omit the Statement of Compatibility with Human Rights in its entirety.

Substitute the following Statement of Compatibility with Human Rights

‘Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

Overview of the Bill

The Bill will facilitate amendments to the Telecommunications (Interception and Access) Act 1979 (the TIA Act) to support the functions of the newly established:

  • South Australian (SA) Independent Commissioner Against Corruption (ICAC)
  • Victorian Independent Broad-based Anti-Corruption Commission (IBAC)
  • Victorian Inspectorate (VI), and
  • Victorian Public Interest Monitor (PIM).

The Bill will amend the TIA Act to enable the SA ICAC to access existing telecommunications interception information for the investigation of serious corruption in public administration in South Australia.

The Bill will also amend the TIA Act to enable the IBAC and the VI to access existing telecommunications information and to support the role of the PIM.  The IBAC will replace the existing Victorian Office of Police Integrity (OPI) as the Victorian integrity agency and the VI will oversight the activities of the IBAC.  The PIM’s functions include acting in the public interest in applications for warrants under the TIA Act.

The Bill will also amend the TIA Act to include the IBAC and ICAC within the definition of an enforcement agency and allow them access to stored content and telecommunications data.

In particular, the Bill will:

·          Remove the OPI as an eligible authority in section 5 of the TIA Act so that it will no longer be eligible to access interception powers or any other powers under the TIA Act.

·          Amend the definition of eligible authority in the TIA Act to include the ICAC, IBAC and VI and allow them to receive TIA Act information for their respective functions.  This will enable the Attorney-General to declare the ICAC and the IBAC as  interception agencies.  Consequently, the ICAC and IBAC will be able to access interception information in their own right once the Attorney-General is satisfied that relevant State legislation meets the requirements of section 35 of the TIA Act.

·          Enable the ICAC, IBAC and VI to use and communicate existing intercepted information to support their functions.

·          Amend the TIA Act to enable the PIM to access relevant information and appear at applications for warrants under the TIA Act.



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

·          Make consequential amendments to the Taxation Administration Act 1958 , the Crimes Act 1914 and the Privacy Act 1988 to replace references to the OPI with references to the IBAC.

·          Make transitional amendments to the TIA Act, Crimes Act 1914 and Taxation Administration Act 1958 so that information provided or disclosed to OPI can be provided or disclosed to the IBAC so that it has the information it needs to perform its investigative functions.

Human rights implications

The human rights engaged by the Bill are those set out in Articles 17 and 19 of the International Covenant on Civil and Political Rights (ICCPR). 

 

Article 17 - privacy

 

Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour or reputation, and that everyone has the right to the protection of the law against such interference or attacks.  Certain provisions in the Bill could be considered to limit the right to privacy under Article17.  However, the right to privacy can be limited as it is not an absolute right and a limitation is not incompatible with the right itself.  

 

New Eligible Authorities

 

The Bill would make the ICAC, IBAC and VI eligible authorities under the TIA Act and therefore allow them to receive existing telecommunications interception information.  The Attorney-General may then declare the ICAC and IBAC to be interception agencies, subject to meeting requirements outlined in section 35 of the TIA Act.  Once declared as interception agencies, the ICAC and IBAC would be eligible to apply for warrants to intercept a person’s private communications in certain circumstances.  However, such interception will not be unlawful as it will be authorised by law under the TIA Act.  Consistent with powers for other State oversight bodies the VI will not be declared an interception agency. 

 

Interception by the ICAC and IBAC will not be arbitrary within the meaning of Article 17.  Interception of telecommunications may only occur subject to a warrant issued by a nominated independent issuing authority, namely a judge or a member of the Administrative Appeals Tribunal.  Before an issuing authority may issue a warrant they must be satisfied that interception is appropriate in the circumstances.  In coming to this conclusion the issuing authority must consider several factors, including the privacy impacts of the interception, the gravity of the offence and the likely usefulness of interception information to the relevant investigation. Thus measures adopted will serve the legitimate purpose of the investigation and prosecution of serious crime and corruption.  The measures will be proportional and reasonable to this end.

 

Other State integrity agencies already have interception powers under the TIA Act and the purpose of the Bill is to ensure the ICAC and IBAC have access to such powers.  Interception will only be available to the ICAC and IBAC in relation to the investigation of serious offences, which generally includes offences punishable by imprisonment for life or for a period or a maximum period of at least seven years.  The ICAC and IBAC will need to obtain a warrant from an independent issuing authority to access or intercept communications.  The TIA Act requires that an issuing authority, such as an eligible Judge or a nominated member of the Administrative Appeals Tribunal have regard to how much the privacy of any person or persons would be likely to be interfered with by interception under a warrant.

 

The Bill will enhance human rights in that it will enable the Victorian PIM to appear at the application stage to test the merits of an application for an interception warrant by Victorian agencies, including by cross-examining applicants and making submissions to the issuing authority in the interests of the public of Victoria.  The PIM is limited to making submissions relating to the factors that the issuing authority must have regard to including how much the privacy of any person may be affected by interception authorised under the warrant.  The TIA Act will require that issuing authorities have regard to any submissions made by the PIM.

 

The Bill will remove the Victorian OPI as an eligible authority and they will no longer be eligible to undertake telecommunications interception or any other powers under the TIA Act.

 

Use and communication of information

 

The TIA Act prohibits the use and disclosure of information obtained under the TIA Act, subject to certain exceptions.

 

The Bill would allow the ICAC and IBAC to use and communicate information obtained under telecommunications interception warrants to support their investigations and prosecutions.  The Bill would also allow the ICAC and IBAC to communicate interception information to another interception agency for the investigation of a relevant offence or other relevant purposes.  These provisions are consistent with existing provisions in the TIA Act and the use and communication will not be unlawful, as it will be sanctioned under the TIA Act.

 

This use and communication will not be arbitrary, as it will serve the legitimate purpose of the investigation and prosecution of serious crime and corruption and is subject to detailed provisions in the TIA Act.

 

The Bill amends the TIA Act to include the VI as an eligible authority.  This will allow the VI to receive, use and disclose existing intercepted information from other interception agencies for the purpose of investigating complaints against the IBAC and IBAC personnel.

 

The amendments to the Crimes Act 1914 will allow constables or Commonwealth officers to share documents or things with IBAC to use for the specific purposes set out in subsection 3ZQU(5) of the Crimes Act 1914 , including preventing, investigating or prosecuting an offence against a law of a State or Territory.

 

The amendments to the Taxation Administration Act 1953 will allow the Australian Taxation Office to disclose taxpayer protected information to the IBAC for law enforcement purposes (such as investigating serious offences and enforcing the law). 

 

The amendments to the Privacy Act 1988 will include the IBAC within the definition of ‘enforcement body’ which is used in the National Privacy Principles in relation to the law enforcement exemptions to the use and disclosure, and access and correction obligations.

 

Enforcement Agencies

 

The TIA Act restricts access to stored communications content and telecommunications data to enforcement agencies as defined in the TIA Act.

 

The Bill would allow the ICAC and IBAC to access stored communication and authorise the disclosure of telecommunications data subject to meeting the thresholds for access contained within the TIA Act.

 

Record-keeping and Report

 

The ICAC and IBAC will be subject to the existing record-keeping and reporting obligations as section 35 of the TIA Act requires that these obligations be satisfied prior to a declaration by the Attorney-General that an eligible authority be an interception agency.  These include requiring regular inspection of records to ensure compliance with the TIA Act as well as regular reporting to the responsible Minister.  Agencies must also report annually to the Attorney-General on the effectiveness of warrants. 

 

Article 19 - freedom of expression

 

Article 19 of the ICCPR deals with freedom of expression.  Article 19 of the ICCPR provides that everyone shall have the right to freedom of expression.  However, this right is subject to certain restrictions, including the protection of national security or public order.  Protection of public order includes law enforcement.

 

The provisions in the Bill allowing the ICAC and IBAC to intercept communications may indirectly affect the right to freedom of expression in that some persons may be more reluctant to use telecommunications services.

 

However, the provisions are reasonably necessary and proportionate for the protection of public order, in particular enforcement of the law.  The ICAC and IBAC will only be able to access a person’s communication for the purpose of investigating a serious offence.  Use and communication of information intercepted under warrant by the ICAC or IBAC will only be permitted in circumstances set out in the TIA Act, including the investigation or prosecution of a prescribed offence.

Conclusion

The Bill is compatible with human rights.  T o the extent that the Bill may limit human rights, those limitations are reasonable, necessary and proportionate.’