Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Investigation and Prosecution Measures Bill 2017

Bill home page  


Download WordDownload Word


Download PDFDownload PDF

 

2016 - 2017

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

INVESTIGATION AND PROSECUTION MEASURES BILL 2017

 

 

EXPLANATORY MEMORANDUM

 

 

(Circulated by authority of the

Attorney-General, Senator the Honourable George Brandis QC)

 

 



 

INVESTIGATION AND PROSECUTION MEASURES BILL 2017

GENERAL OUTLINE

1.                   The Investigation and Prosecution Measures Bill 2017 (the Bill) will make two sets of amendments:

·          First, it will amend the Telecommunications (Interception and Access) Act 1979 (the TIA Act) and the Surveillance Devices Act 2004 (the SD Act) to support a restructure of the Independent Commission Against Corruption of New South Wales (the Commission).

·          Secondly, it extends the functions, powers and duties of the Commonwealth Director of Public Prosecutions (CDPP) to the laws of Norfolk Island.

2.                   The Bill comprises two schedules:

·          Schedule 1 addresses the amendments relevant to the Commission, and

·          Schedule 2 addresses the amendments relevant to the CDPP’s functions, powers and duties on Norfolk Island.

Schedule 1 - Independent Commission Against Corruption of New South Wales

3.                   The Bill will make minor amendments to the TIA Act and the SD Act to reflect a restructuring of the Commission made by the Independent Commission Against Corruption Amendment Act 2016  (NSW) (the ICAC Amendment Act). That Act restructured the Commission to replace the former arrangement of a single Commissioner and Assistant Commissioners. The re-formed Commission consists of a full-time Chief Commissioner and two part-time Commissioners. Assistant Commissioners may also be appointed.

4.                   The Commission investigates and exposes corrupt conduct in the public sector, prevents corruption through advice and assistance as permitted, and educates the community and public sector about corruption and its effects.

5.                   Schedule 1 is comprised of four parts:

·          Part 1 addresses definitions

·          Part 2 amends the TIA Act

·          Part 3 amends the SD Act, and

·          Part 4 deals with general transitional provisions.

Telecommunications (Interception and Access) Act 1979

6.                   The TIA Act provides the legal framework for specified intelligence and law enforcement agencies to access communications and data for the investigation of criminal offences and other activities that threaten safety and security.

7.                   It permits criminal law enforcement agencies, including the Commission, to obtain warrants to intercept communications, to obtain warrants to access stored communications, to issue domestic preservation notices and to access telecommunications data.

8.                   The TIA Act vests certain positions within the Commission specific authority. The Chief Commissioner will, for example, be able to authorise members of the Commission to receive information gathered under warrants and communicate intercepted information obtained by the Commission to other agencies in limited circumstances. The amendments will allow the Chief Commissioner, a Commissioner or an Assistant Commissioner to be certifying officers under the Act. Certifying officers can, for example be delegated the power to revoke interception and stored communication warrants, certify true copies of warrants and issue evidentiary certificates.

Surveillance Devices Act 2004

9.                   The SD Act governs the use of optical surveillance devices, listening devices, data surveillance devices and tracking devices by law enforcement agencies. The Act complements the relevant surveillance devices laws of the states and territories by allowing law enforcement agencies such as the Commission to obtain surveillance device warrants to help investigate federal offences and state offences with a federal aspect.

10.               The SD Act vests certain positions within the Commission specific authority when undertaking functions under the Act. The Chief Commissioner will, for example have the power to revoke surveillance device warrants, and authorise executive level officers to be authorising officers. Commissioners and Assistant Commissioners will also be designated as authorising officers under the Bill. Authorising officers may, for example, issue emergency authorisations for the use of a surveillance device, authorise the use and retrieval of tracking devices without warrant in certain circumstances and issue evidentiary certificates.

Schedule 2 - Functions and powers of the Commonwealth Director of Public Prosecutions in relation to Norfolk Island

11.               The Director of Public Prosecutions Act 1983 (the DPP Act) establishes the CDPP and provides for the functions, powers and duties of that office. The DPP Act is currently limited in its extension to Norfolk Island. The Bill will make minor amendments to the DPP Act to extend the functions, powers and duties of the CDPP to the laws of Norfolk Island.

The Bill expands the CDPP’s functions held in relation to laws of the Commonwealth, to laws that are in force, or were in force, from time to time in Norfolk Island. The Bill also validates things done under the Director of Public Prosecutions Regulations 1984, as amended by the Director of Public Prosecutions Amendment (Norfolk Island) Regulations 2017 , in the circumstance that the amending regulations are found to be invalid.

FINANCIAL IMPACT

12.               The Bill will have no financial impact.

 



 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

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

Investigation and Prosecution Measures Bill 2017

13.               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 . To the extent that the measures in the Bill may limit those rights and freedoms, such limitations are reasonable, necessary and proportionate in achieving the intended outcomes of the Bill.

Schedule 1 - Independent Commission Against Corruption of NSW

Overview of the Bill

14.               The Bill will make minor amendments to the TIA Act and the SD Act to reflect a restructuring of the Commission made by the Independent Commission Against Corruption Amendment Act 2016  (NSW). That Act restructured the Commission to replace the former arrangement of a single Commissioner and Assistant Commissioners. The re-formed Commission consists of a full-time Chief Commissioner and two part-time Commissioners. Assistant Commissioners may also be appointed as required.

15.               The Bill makes no substantive changes to the Commission’s powers under the TIA Act and SD Act.

16.               The Commission has previously been declared as an interception agency under the TIA Act and is included in the definition of ‘criminal law enforcement agency’ for the purposes of section 110A of the TIA Act. A declaration as an interception agency and inclusion as a criminal law enforcement agency enables officers of the Commission to:

·          apply for interception warrants to assist in the investigation of serious offences, (generally defined as offences punishable by at least seven years’ imprisonment)

·          issue preservation notices in order to preserve communications where a stored communications warrant will be sought

·          apply for stored communications warrants to assist in the investigation of serious contraventions, generally defined as offences punishable by at least three years’ imprisonment

·          seek access to telecommunications data where reasonably necessary for the enforcement of the criminal law, a law imposing a pecuniary penalty or for the protection of the public revenue, and

17.               The Commission will also remain a law enforcement agency for the purposes of the SD Act. Consequently, by virtue of the SD Act, designated law enforcement officers within the Commission can obtain warrants, emergency authorisations and tracking device authorisations for the use of surveillance devices in relation to criminal investigations and other specified purposes.

 

Human rights implications

Right to privacy

18.               The Acts that this schedule of the Bill amends engage the right to privacy (Article 17 of the International Covenant on Civil and Political Rights (ICCPR)). That article provides that no-one shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour or reputation, and that everyone has the right to the protection of the law against such interference or attacks.

19.               Interferences with privacy may be permissible, provided that they are authorised by law and not arbitrary. In order for an interference with the right to privacy not to be arbitrary, the interference must be for a reason consistent with the provisions, aims and objectives of the ICCPR and be reasonable in the particular circumstances. The United Nations Human Rights Committee has interpreted ‘reasonableness’ in this context to mean that ‘any interference with privacy must be proportional to the end sought and be necessary in the circumstances of any given case’.

20.               The exercise of electronic surveillance powers by the Commission is not arbitrary within the meaning of Article 17. Interception of telecommunications and access to stored communications may only occur subject to a warrant issued by an independent issuing authority (a judge or member of the Administrative Appeals Tribunal). When deciding whether a warrant should be issued the issuing authority must have regard to several factors, including: the privacy impacts; the gravity of the offence; the extent to which other investigative methods are available, and the likely usefulness of the information to the relevant investigation.

21.               Authorised officers are required to consider similar factors before authorising the disclosure of telecommunications data. Authorised officers must be satisfied that the disclosure of telecommunications data is reasonably necessary for the enforcement of the criminal law, protection of the public revenue or for the enforcement of a law imposing a pecuniary penalty and that any interference with the privacy of any person is justifiable and proportionate.

22.               Warrants under the SD Act may only be issued by an eligible judge or nominated member of the Administrative Appeals Tribunal. The person issuing the warrant must have regard to a range of factors, including the extent to which the privacy of any person is likely to be affected and the existence of alternative means to obtaining the evidence or information.  Authorisations for the use of surveillance devices are available in emergency circumstances, including where there are serious risks to a person or property, urgent circumstances relating to a recovery order or there is a risk that evidence will be lost in relation to certain defined offences. The approval of a judge or member of the Administrative Appeals Tribunal must be sought within 48 hours after the emergency authorisation is given.

Freedom of expression

23.               The Acts to be amended also engage the right to freedom of expression (Article 19 of the ICCPR). This article including the right ‘to seek, receive and impart information and ideas of all kinds’ and extends to any medium, including written and oral communications, the media, public protest, broadcasting, artistic works and commercial advertising. The means of communication listed in Article 19(2) are not exhaustive and the right to freedom of expression has been interpreted as including means of communication such as the contents of phone conversations.

24.               Article 19(3) provides that the right to freedom of expression may be subject to restrictions for specified purposes provided in the right, including the protection of national security or public order (which includes prevention of disorder and crime) where such restrictions are provided by law (that is, set down in formal legislation or an equivalent unwritten norm of common law) and are necessary for attaining one of these purposes.

25.               The requirement of ‘necessity’ implies that any restriction must be proportionate to the purpose sought to be achieved. Limitations on freedom of expression on the grounds of public order include limitations for the purpose of preventing crime. In order for the laws to be considered a necessary restriction on freedom of expression on the grounds of public order, the restriction must be clearly defined.

26.               The Acts that this Bill amends may be seen to indirectly limit the right to freedom of expression, as some persons may be more reluctant to use telecommunications services to seek, receive and impart information if they know that data about their communications may be accessed. Likewise a person may reluctant to communicate with others if they believe that they may be subject to a surveillance device.

27.               However, these Acts aim to prevent criminal activity by ensuring that law enforcement and intelligence agencies have access to communications and associated information central to virtually every organised crime, counter espionage, cyber security and counter-terrorism investigation. Electronic surveillance is also used in almost every serious criminal investigation, such as murder, rape and kidnapping. The provisions in the Acts therefore fall within the scope of a specified purpose for which the freedom of expression may be limited.

28.               To the extent that the Acts have the effect of limiting the right to freedom of expression, the limitation is designed for the legitimate objective of protecting public order. The Acts limit the extent to which the right to freedom of expression is interfered with by ensuring that there are strict controls on access to communications or the use of surveillance devices. The Acts also limit which agencies that may access communications, or use surveillance devices.

Schedule 2 - Functions and powers of the Director of Public Prosecutions in Norfolk Island

Overview of the Bill

29.               The Bill will amend the DPP Act to provide that the CDPP’s functions, powers and duties extend to the laws of Norfolk Island. The Australian Government has committed to providing to Norfolk Island a level of services comparable to those enjoyed by Australians in other similar-sized communities. The Bill will contribute to delivering this commitment by allowing the CDPP to perform prosecutorial, and related functions, in relation to Norfolk Island laws. This will allow prosecutions against Norfolk Island laws to be dealt with by a professional and independent prosecution service with significant technical expertise, akin to normal prosecution practices provided by the Commonwealth Government on mainland Australia and in the other external Territories.

Human Rights Implications

30.               The Bill extends existing Commonwealth prosecutorial arrangements applicable on mainland Australia to Norfolk Island, such that the CDPP may institute, carry on or take over proceedings in relation to laws of Norfolk Island if he or she so wishes. The nature of the CDPP’s functions, powers and duties remain unchanged. As such, the bulk of the measures in relation to the CDPP do not engage any of the applicable rights or freedoms.

31.               Item 3 of Schedule 2 clarifies that any reference to a law of a Territory in the DPP Act, or an instrument made under that Act, includes a reference to a law in force in Norfolk Island at any time, whether before or after the commencement of the item. Item 4 of Schedule 2 validates things done under the Director of\ Public Prosecutions Regulations 1984 , as amended by the Director of Public Prosecutions Amendment (Norfolk Island) Regulations 2017 , if the latter regulations are found to be invalid.

32.               These items have the potential to engage the prohibition against retrospective criminal laws in Article 15(1) of the ICCPR. Article 15(1) provides that:

No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby.

33.               The prohibition relates to someone being held guilty of a criminal offence that was not a criminal offence when the criminal conduct occurred, or being given a heavier penalty than that which was applicable at the time of the offence. It does not extend to retrospective changes to procedure, practice or rules that do not affect the criminality of conduct or punishment to which an offender is liable. These measures in the Bill do not change any criminal offences, penalties or sanctions applicable to those subject to the laws of Norfolk Island. As such, they do not infringe the prohibition against retrospective criminal laws.

Conclusion

34.               The Bill is compatible with human rights because it, and therefore the Acts it amends, will promote rights and, t o the extent that the Bill may also limit rights, those limitations are reasonable, necessary and proportionate to the objective of ensuring law enforcement and national security agencies have the tools they need to conduct investigations and keep Australians safe.



 

NOTES ON CLAUSES

Clause 1 - Short title

35.               Clause 1 provides for the short title of the Act to be the Investigation and Prosecution Measures Act 2017 .

Clause 2 - Commencement

36.               Clause 2 sets out when the various parts of the Act will commence, as described in the table.

37.               Item 1 in the table provides that sections 1 to 3, and anything in the Act not elsewhere covered by the table, will commence on the day the Act receives Royal Assent.

38.               Item 2 in the table provides that Schedule 1, which amends the TIA Act and SD Act, will commence the later of the day the Act receives Royal Assent and the day the Independent Commission Against Corruption Amendment Act 2016 (the ICAC Amendment Act) commences. However, the provisions do not commence at all if the ICAC Amendment Act does not commence. Item 3 also provides that Schedule 2, which amends the DPP Act, will commence the day after the Act receives Royal Assent.

Clause 3 - Schedules

39.               Clause 3 provides that each Act specified in a Schedule to the Act is amended or repealed as set out in the Schedule. Any other item in a Schedule has effect according to its terms. This provision is technical to give operational effect to the amendments contained in a Schedule.

SCHEDULE 1 - INDEPENDENT COMMISSION AGAINST CORRUPTION OF NEW SOUTH WALES

PART 1 - DEFINITIONS

40.               Part 1 of Schedule 1 defines the difference between the ‘new Commission’ and ‘old Commission’. The new Commission means the Commission on and after the commencement of the ICAC Amendment Act. The old Commission means the Commission before the commencement of the ICAC Amendment Act.

PART 2 - TELECOMMUNICATIONS (INTERCEPTION AND ACCESS) ACT 1979

Division 1 - Amendments

Item 10 - Subsection 5 (1) (subparagraph (e)(i) of the definition of certifying officer )

41.               This subparagraph defines certifying officer for the purposes of the Act. This amendment ensures that the re-structured Commission is referenced properly in this definition.

Item 15 - Subsection 5(1) (paragraph (e) of the definition of chief officer )

42.               This paragraph defines chief officer for the purposes of the Act. This amendment ensures that the re-structured Commission is referenced properly in this definition to mean the Chief Commissioner.

Item 20 - Subsection 5AC(6) - Authorisation of certifying officers

43.               Section 5AC allows the authorisation of certifying officers. This amendment ensures that the re-structured Commission is referenced properly in this definition to allow the Chief Commissioner to authorise certifying officers.

Item 25 - Paragraph 68(ea) - Chief officer may communicate information obtained by agency

44.               Section 68 relates to the communication of lawfully intercepted information or interception warrant information by the chief officer of an agency (or other person authorised by them) and who may receive that information. This amendment ensures that the re-structured Commission is referenced properly in this paragraph to allow the Chief Commissioner to communicate and receive lawfully intercepted information and interception warrant information.

Division 2 - Transitional provisions

Item 30 - Warrants issued to the old Commission

45.               This item provides that a warrant issued to the old Commission under the TIA Act, that was issued before the commencement of this Schedule and was in force immediately before that commencement, continues in force (and may be dealt with) on and after that commencement as if it had been issued to the new Commission.

Item 35 - Authorisations made by an authorised officer of the old Commission

46.               This item provides that an authorisation made by an authorised officer of the old Commission under Division 4 of Part 4-1 of the TIA Act, that was issued before the commencement of this Schedule and was in force immediately before that commencement, continues in force (and may be dealt with) on and after that commencement as if it had been made by an authorised officer of the new Commission.

Item 40 - Preservation notices given by the old Commission

47.               This item provides that a domestic preservation notice given by the old Commission under the TIA Act, that was issued before the commencement of this Schedule, that was in force immediately before that commencement, continues in force (and may be dealt with) on and after that commencement as if it had been given by the new Commission.

Item 45 - Evidentiary certificates issued by a certifying officer of the old Commission

48.               This item provides that a writt en certificate issued by a certifying officer of the old Commission under sections 61, 107U, 130 or 185C of the TIA Act, that was issued before the commencement of this Schedule, was in force immediately before that commencement, continues in force (and may be dealt with) on and after that commencement as if it had been issued by a certifying officer of the new Commission.

Item 50 - Transfer of information acquired under the TIA Act

49.               This item applies to specified types of information acquired by the old Commission under the TIA Act before, on or after the commencement of this Schedule.  The amendment provides that nothing in in any law of the Commonwealth prevents the Commissioner of the old Commission from communicating that information to the new Commission on or after its commencement.

PART 3 - SURVEILLANCE DEVICES ACT 2004

Division 1 - Amendments

Item 55 - Subsection 6A(7) (table item 10) - Law enforcement agencies

50.               Section 6A uses tables to define law enforcement agency , chief officer (of the law enforcement agency), law enforcement officer (of the law enforcement agency) and appropriate authorising officer (of the law enforcement agency). This amendment ensures that the re-structured Commission is referenced properly in these definitions. The amendments are that the Chief Commissioner is now the chief officer, and the Chief Commissioner, a Commissioner or an Assistant Commissioner (in addition to the current situation of an authorised executive level officer) are appropriate authorising officers.

Division 2 - Transitional provisions

Item 60 - Warrants issued to a law enforcement officer of the old Commission

51.               This item provides that a warrant issued under the SD Act to a law enforcement officer who belonged to or was seconded to the old Commission, that was issued before the commencement of this Schedule, was in force immediately before that commencement, continues in force (and may be dealt with) on and after that commencement as if it had been issued to a law enforcement officer who belonged to or was seconded to the new Commission.

Item 65 - Authorisations given by an appropriate authorising officer of the old Commission

52.               This item provides that an emergency authorisation or tracking device authorisation that was given under the SD Act by an appropriate authorising officer of the old Commission, that was given before the commencement of this Schedule and was in force immediately before that commencement, continues in force (and may be dealt with) on and after that commencement as if it had been given by an appropriate authorising officer of the new Commission.

Item 70 - Evidentiary certificates issued by an appropriate authorising officer of the old Commission

53.               This item provides that a written certificate issued under section 62 of the SD Act by an appropriate authorising officer of the old Commission, or by a person assisting an appropriate authorising officer of the old Commission, that was issued before the commencement of this Schedule and was in force immediately before that commencement, continues in force (and may be dealt with) on and after that commencement as if it had been issued by an appropriate authorising officer of the new Commission.

Item 75 - Transfer of information acquired under the SD Act

54.               This item applies to information acquired by the old Commission before, on or after the commencement of this Schedule and is protected information (within the meaning of the SD Act), or any other information or documents lawfully acquired by the old Commission under that Act.  The amendment provides that nothing in any law of the Commonwealth prevents the Commissioner of the old Commission from communicating that information to the new Commission on or after its commencement.

PART 4 - GENERAL TRANSITIONAL PROVISIONS

Item 80 - Things done or not done by, or in relation to, the old Commission

55.               This item provides that for the purposes of a law of the Commonwealth, anything done or not done before the commencement of this Schedule by, or in relation to, one set of persons, has effect on and after that commencement as if it had been done or not done by, or in relation to, a nominated set of persons.

56.               The item also clarifies reporting arrangements. Reports due after the commencement of these amendments, that relate to activities that started before the commencement, must include the period before the commencement.

Item 85 - Minister may make rules

57.               This item provides that the Minister may, by legislative instrument, make rules prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to the amendments or repeals made by this Schedule, the abolition of the old Commission (so far as it is relevant to an Act amended by this Schedule) or the establishment of the new Commission (so far as it is relevant to an Act amended by this Schedule).

58.               To avoid doubt, this item explains that rules may not:

·          create an offence or civil penalty

·          provide powers of arrest or detention, or entry, search or seizure

·          impose a tax

·          set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act, or

·          directly amend the text of this Act.



 

SCHEDULE 2 - FUNCTIONS AND POWERS OF DIRECTOR OF PUBLIC PROSECUTIONS IN NORFOLK ISLAND

PART 1 - AMENDMENT OF THE DIRECTOR OF THE DIRECTOR OF PUBLIC PROSECUTIONS ACT 1983

Item 1 - Subsection 3(1) (paragraph (b) of the definition of law of the Commonwealth )

59.               This item amends the definition of ‘law of the Commonwealth’ by repealing the limitation in relation to the Norfolk Island Act 1979 contained in paragraph (b) of subsection 3(1) of the DPP Act.

Item 2 - Subsection 3(1) (paragraph (c) of the definition of law of the Commonwealth )

60.               This item amends the definition of ‘law of the Commonwealth’ by omitting the clause ‘paragraph (aa), (a) or (b)’, and substituting it with ‘paragraph (aa) or (a)’ to reflect the amendment in item 1.

PART 2 - REFERENCES TO A LAW OF A TERRITORY

Item 3 - References to a law of a Territory

61.               This item clarifies that, for the purposes of the DPP Act and any instrument made under that Act, that a reference to a law of a Territory includes a reference to a law in force in Norfolk Island at any time, whether before or after the commencement of this item.

PART 3 - VALIDATION OF THINGS DONE UNDER THE DIRECTOR OF PUBLIC PROSECUTIONS AMENDMENT (NORFOLK ISLAND) REGULATIONS 2017

62.               This item validates things done under the Director of Public Prosecutions Regulations 1984 , as amended by the Director of Public Prosecutions Amendment (Norfolk Island) Regulations 2017 , if the latter regulations are found to be invalid.