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Telecommunications (Interception) Act - Report - 1992-93


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Telecommunications (Interception) Act 1979 Report for the year ending 30 June 1993

Telecommunications (Interception) Act 1979

Report for the year ending 30 June 1993

Australian Government Publishing Service Canberra

TABLE OF CONTENTS

Abbreviations....................................................................................................v

CHAPTER 1: INTRODUCTION................................................................................1

CHAPTER 2: OVERVIEW OF THE ACT

• History of the legislation.............................................................................3

• Objects of the legislation..............................................................................4

• Provisions relevant to this report.................................................................4

- Part VI warrants - relevant offences...................................................... 4

- Applying for Part VI warrants...............................................................5

- Eligible Judges........................................................................................5

- Form of applications.............................................................................. 6

- Types of w arrants.................................................................................. 6

• Safeguards and controls contained in the Act.............................................. 6

• Accountability Provisions.............................................................................7

- Minister to be given copies of warrants and revocations......................7 - Reports by carrier................................................................................... 7

- Reports by Ombudsman........................................................................7

- Annual Report tabled by Attorney-General.......................................... 8

CHAPTER 3: DEVELOPMENTS IN THE REPORTING YEAR

• Relevant legislative developments...............................................................9

- Legislation.............................................................................................. 9

- Regulations............................................................................................ 9

• Judicial decisions.......................................................................................... 9

• Previous annual reports............................................................................... 9

• Review of the Act........................................................................................10

• Resources devoted to telecommunications interception............................ 10 - Recurrent Costs of Interceptions in 1992-93 - User Agencies..............11 - Expenditure by the Telecommunications Interception Division......... 12

CHAPTER 4: INFORMATION REQUIRED UNDER THE ACT

• Presentation of the information..................................................................13

• The information required........................................................................... 13

• Which agencies may seek telecommunications interception warrants?.....................................................................................................14

• Information required under section 100..................................................... 14

- Meaning of various terms.................................................................... 14

- General statistics relating to applications for Part VI warrants -paragraphs 100(l)(a) and 2(a).............................................................. 15

- Statistics relating to telephone applications for warrants -paragraphs 100(l)(b) and (2)(b)........................................................... 15

- General statistics relating to renewal applications for Part VI warrants - paragraphs 100(l)(c) and 2(c)............................................. 16

iii

- Applications for warrants authorising entry on premises -paragraphs 100(l)(d) and (2)(d)............................................................ 17

- Warrants issued with specific conditions or restrictions -paragraphs 100(l)(e) and (2)(e)............................................................. 18

- Categories of serious offences specified in Part VI warrants, according to the agency concerned - paragraphs 100(l)(f) and (g).................................................................................................... 19

- Categories of serious offences specified in Part VI warrants, in relation to all agencies - paragraphs 100(2)(f) and (g)........................22 - Warrants authorising the Australian Federal Police to intercept telegrams - subsection 100(3)................................................................ 23

• Information required under section 101....................................................... 24

- Meaning of various terms......................................................................24

- Duration of original warrants under Part VI - paragraphs 101(l)(a)&(b) and (2)(a)&(b).................................................................. 24

- Duration of renewal warrants under Part VI - paragraphs 101(l)(c)&(d) and(2)(c)&(d)................................................................... 25

- Number of final renewals of warrants under Part VI -paragraphs 101(l)(e) and(2)(e).............................................................. 26

- Duration of Part IV warrants - subsection 101(4)................................ 26

• Information required under section 102....................................................... 27

- Meaning of various terms......................................................................27

- Arrests on the basis of lawfully obtained information -paragraphs 102(l)(a) and (2)(a)............................................................. 28

- Prosecutions in which lawfully obtained information was given in evidence - paragraphs 102(l)(b) &(c) and (2)(b) &(c)........................28

APPENDIX I

iv

Compliance with Annual Report Guidelines 34

ABBREVIATIONS

AFP Australian Federal Police

ASIO Australian Security Intelligence Organization

ICAC New South Wales Independent Commission Against

Corruption

NCA National Crime Authority

NSWCC New South Wales Crime Commission

TID Telecommunications Interception Division

The Act The Telecommunications (Interception) Act 1979

CHAPTER 1

INTRODUCTION

1.1 This report is made in compliance with Division 2 of Part IX of the Telecommunications (Interception) Act 1979 (the Act), which requires the Attorney- General, as Minister administering the Act, to have prepared each year a report giving details of interceptions of telecommunications for law enforcement purposes.

This is the fifth report prepared in accordance with the requirements of that Division, and relates to the year ending 30 June 1993.

1.2 Chapter 2 outlines the objectives and the structure of the Act. Chapter 3 records relevant developments which have occurred during the year under review. Chapter 4 presents the material collected in compliance with the statutory requirements of Division 2 of Part IX of the Act.

1.3 Apart from the statutory requirements, the report complies with the recommendations of the Senate Standing Committee on Legal and Constitutional Affairs on appropriate criteria for assessing reports on the operation of Acts. In addition, the report includes some material on developments with the Act during

the year. Finally, the report includes a detailed table of contents and an appendix indicating compliance with reporting guidelines to make its contents more accessible to the reader.

:

CHAPTER 2

OVERVIEW OF THE ACT

2.1 This chapter provides an overview of the Act. This includes a brief history of the Act, an outline of its objects, and a description of the provisions which are most relevant to the contents of this report. In addition, a section relating to the accountability provisions of the Act has been included, to explain how the various

agencies involved are made accountable for their actions under the legislation.

History of the legislation

2.2 Section 51 (v) of the Constitution gives the Commonwealth Parliament power to make laws with respect to postal, telegraphic, telephonic and other like services. This power was first used when the Post and Telegraph Act 1901 - the twelfth Act of the Commonwealth Parliament - was enacted. The object of the

relevant legislation at that time was the physical protection of the telegraph and telephone system. Unless interception activity resulted in damage or disruption of telegraphic services, it was not within the ambit of any offences created by the Act. The Post and Telegraph Act was hence largely silent on interception.

2.3 The Commonwealth first exercised its power to make laws regulating the interception of telecommunications by enacting the Telephonic Communications (Interception) Act 1960. That Act provided, for the first time, clear legal protection of the privacy of telephone communications. Under the Act, it was an offence to

intercept telephonic communications except in two circumstances -• where interception was effected by officers of what was then the Postmaster-General's Department, either for technical reasons connected with the operation of the telephone system, or to trace a telephone call

relating to a contravention of the Post and Telegraph legislation (e.g., nuisance calls); and

• where interception was authorised by a warrant issued under the Act. Such a warrant could only be issued to ASIO for national security purposes by the Attorney-General or, in emergencies and for a short term, the Director-General of Security.

These were the only circumstances in which interceptions were lawful in Australia after the 1960 Act came into force. Thus, under the 1960 Act, interception for general law enforcement purposes was illegal.

2.4 This changed when the current Act was enacted. The passage of the Telecommunications (Interception) Act 1979 marked an expansion of the purposes for which telephone interception might be authorised from national security to include narcotics offences punishable under the Customs Act 1901, such as drug importation. It also extended the scope of protection against interception beyond the voice

Overview of the Act 5

• a class 1 offence includes murder, kidnapping and equivalent offences; narcotics offences punishable as provided by section 235 of the Customs Act 1901; and offences in relation to which the National Crime Authority is conducting a special investigation within the

meaning of the National Crime Authority Act 1983 (but only in relation to warrants sought by the NCA). It also includes ancillary offences (such as aiding, abetting and conspiring) in relation to the other class 1 offences.

• a class 2 offence covers offences punishable by imprisonment for a period of at least 7 years, where the offence involves loss of life or serious personal injury, or serious risk of such loss or injury; serious damage to property in circumstances endangering a person's safety;

trafficking in narcotic drugs; serious fraud; and serious loss to the revenue of the Commonwealth or a State. It also includes ancillary offences in relation to the other class 2 offences.

Applying for Part VI warrants

2.10 Warrant applications for law enforcement purposes may only be made by the Australian Federal Police, the National Crime Authority, or an 'eligible authority' of a State or the Northern Territory in relation to which a declaration under section 34 of the Act is in force. The Act defines eligible authorities to be the police forces of each of the States and of the Northern Territory and also, in the case

of New South Wales, the Independent Commission Against Corruption and the New South Wales Crime Commission. Below are particulars of eligible authorities and the date on which declarations under section 34 came into effect:

Police Force of Victoria

New South Wales Crime Commission

New South Wales Police Force

Independent Commission Against Corruption

Police Force of South Australia

28 October 1988

30 January 1989

30 January 1989

6 June 1990

10 July 1991

Eligible Judges

2.11 Only certain judges, referred to in the Act as 'eligible Judges', may issue warrants authorising interceptions for law enforcement purposes2. An 'eligible Judge' is a Judge of a court created by the Parliament who, having previously consented in writing, is nominated by the Attorney-General to be an eligible Judge

for the purposes of the Act. So far, only Judges of the Federal Court of Australia have been nominated.

2 Warrants for national security purposes are issued to ASIO by the Attorney-General.

6 Telecommunications (Interception) Act 1979 - Annual Report 1992-93

Form of applications

2.12 In the normal course of events, the Act requires an application for a warrant to be in writing but, in urgent circumstances, allows applications to be made by telephone. In either case, the warrant takes effect only when the Judge completes and signs it. The information required for a written application is also required to be

provided to a Judge at the time of a telephone application and the applicant must supply the relevant supporting affidavits to the Judge within 1 day after the warrant is issued. Specific provision is made for the revocation of a warrant where this condition is not complied with.

Types of warrants

2.13 In deciding whether to issue a warrant, the Judge must be satisfied about certain matters set out in section 45 (class 1 offences) or section 46 (class 2 offences). The principal matters which the Judge is required to consider are: the availability of alternative methods of investigating the offence; and, in the case of class 2 offences,

the gravity of the conduct being investigated and the degree of interference with the privacy of any person. Where an application for a warrant includes a request that the warrant authorise entry on premises, the Judge is also required to be satisfied

that it would be impracticable or inappropriate to intercept communications by less intrusive means (see section 48).

2.14 Part IV of the Act provides for the issue of warrants authorising Telecom to inspect and make copies of telegrams in connection with the AFP's investigation of class 1 or class 2 offences. However, no such warrants have been issued in the reporting year, since the telegram service has been discontinued.

Safeguards and controls contained in the Act

2.15 The Act contains a number of safeguards and controls in relation to interceptions. The two Commonwealth law enforcement agencies are obliged to maintain records relating to interceptions and the use of intercepted information, and the Act requires regular inspections of those records by the Ombudsman. Records of intercepted information which are not required for specified purposes of

the agency must be destroyed (see section 79). The Act also ensures that the Attorney-General, as the Minister administering the Act, is kept informed of the agencies' activities by means of reports from the agencies and the Ombudsman.

2.16 The imposition of parallel requirements by State legislation on a relevant eligible authority of the State is a precondition to the Attorney-General's making a declaration under the Act in relation to such an authority. Provision is made for revocation of a declaration where the Attorney-General is satisfied that the relevant State's legislation no longer satisfies those requirements. All law enforcement agencies able to apply for the issue of interception warrants therefore operate under equivalent supervisory and accountability provisions, including those relating to inspection and reporting.

2.17 A central agency (the Telecommunications Interception Division) within the Australian Federal Police conducts interceptions on behalf of all law enforcement

Overview of the Act 7

agencies, apart from operational divisions of the AFP, who are authorised to apply for the issue of warrants under the Act. Intercepted communications are recorded by the TID and simultaneously transmitted to the relevant law enforcement agency.

Accountability Provisions

2.18 The Act contains a number of provisions designed to facilitate monitoring of the operations of the agencies applying for warrants and to render the agencies accountable for their actions under the legislation. The more significant of these provisions are outlined below.

Minister to be given copies of warrants and revocations

2.19 The effect of section 94 and subsection 35(1) of the Act is that a copy of each warrant issued to any agency, and of each instrument revoking a warrant, must be given to the Attorney-General as soon as practicable. The same provisions also require, within 3 months of a warrant's ceasing to be in force, a written report about

the use made of information obtained by interception under the warrant to be given to:

• in the case of warrants issued to the two Commonwealth agencies - the Attorney-General; and

• in the case of warrants issued to 'declared' State agencies - the relevant responsible Minister, who must give a copy of the report to the Commonwealth Attorney-General as soon as practicable .

Reports by carrier

2.20 Section 97 requires the Managing Director of a carrier whose service is intercepted under a warrant to report to the Attorney-General, within 3 months of the warrant's ceasing to be in force, on the nature and timing of acts done by the employees of the carrier to effect interceptions under warrant, and to discontinue

interceptions when the warrant expires or is revoked.

Reports by Ombudsman

2.21 Under Part VIII of the Act, the Commonwealth Ombudsman has the function of inspecting the records of the two Commonwealth agencies and reporting on the outcome of those inspections. Eligible authorities of a State may acquire 'declared' status only where the law of the relevant State provides for inspections

and reports by an agency which is independent of the eligible authority and which has sufficient powers to inspect the records of the authority. In most cases this means the Ombudsman for the jurisdiction in question, but in the case of South Australia, the Police Complaints Authority undertakes the function. The reports of

the Ombudsman's inspections of the two Commonwealth agencies are given to the Attorney-General. The reports of the inspections of the declared State agencies are given to the responsible State Minister who then passes a copy to the Attorney- General. The reports of the inspecting authorities indicate a very high level of

compliance by the agencies operating under the Act, with such instances of non-

CHAPTER 3

DEVELOPMENTS IN THE REPORTING YEAR

3.1 This chapter includes information concerning developments relating to the Act which took place during the reporting year. In preparing this chapter, attention has been given to suggestions made by the Senate Standing Committee on Legal and Constitutional Affairs concerning material which is appropriate for inclusion in

annual reports on the operation of Acts, and to comments made by the Committee on the previous annual report (as to which see below, paragraphs 3.5 to 3.8).

Relevant legislative developments

Legislation

3.2 No amendments were made to the Act during the reporting year.

Regulations

3.3 No amendments to the regulations prescribed under the Act were made during the reporting year.

Judicial decisions

3.4 No significant judicial decisions relevant to the interception of telecommunications were made in the reporting year.

Previous annual report

3.5 The report on the Act relating to the year ending 30 June 1992 was tabled in the House of Representatives on 26 November 1992, and in the Senate on 8 December 1992. That report was produced under the guidelines for the preparation of annual reports, which were issued by the Government in response to

a recommendation by the Senate Standing Committee on Legal and Constitutional Affairs in its Report on Annual Reports Referred to the Committee - May 1990. This report includes the available information which the guidelines now require. A copy of the guidelines - along with a summary showing where the relevant information is

located - appears at Appendix I to this report.

3.6 In its report on Scrutiny of Annual Reports - No. 1 of 1993, which was presented to the Senate on 4 May 1993, the Committee noted that the previous annual report 'contains for the first time information on the resources devoted to telecommunications interception, information required by guidelines for annual

reports on the operation of legislation' (paragraph 3.5). The Committee went on to say that it 'will be interested in the corresponding information contained in future reports with a view to monitoring developments over time' (paragraph 3.6). Information relating to the costs of telecommunications interception under the Act

10 Telecommunications (Interception) Act 1979 - Annual Report 1992-93

was sought from the relevant law enforcement agencies and has been included at paragraphs 3.10-3.11 below.

3.7 The Committee commented upon the wide variance between some figures supplied from year to year. As an example, the Committee (at paragraph 3.7) referred to Table 23 of the previous annual report, which summarises the figures for prosecutions and convictions recorded in that year. The committee quoted the figures recorded for the Australian Federal Police in 1990/91 and 1991/92 - 81 prosecutions and 81 convictions in 1990/91 (not 91 convictions as published in the Committee's Report), and 237 prosecutions and 78 convictions in 1991/92. The Committee said '[i]t would be helpful if significant statistical fluctuations of this

kind were accompanied by an explanatory note' (paragraph 3.7).

3.8 There is no obvious explanation for the fluctuations referred to by the Committee but further explanatory material has been included in this report where it is available. The figures for the current year and the previous two years are provided for the purpose of comparison. However, as noted at paragraph 4.40 in relation to Tables 20,21 and 22 (of which the latter two are summarised by table 23),

there are a number of factors to be borne in mind when comparing figures in this way. The correlation between prosecutions and convictions can be affected by the time lag between arrest, prosecution and conviction and the possibility of a person being charged with more than one offence. Other relevant factors are growing police awareness, and use, of telecommunications interception as an effective crime prevention and problem-solving tool, and variations in law enforcement's technical capacity to intercept as new services are introduced.

Review of the Act

3.9 As noted in previous reports, the Attorney-General's Department has completed a review of the Act in response to significant changes in telecommunications technology and the telecommunications market which have occurred in the ten years the Act has been in force. The review made a number of recommendations to the Attorney-General. The Telecommunications (Interception) Amendment Bill has been drafted on the basis of recommendations which arose out of the review and introduced into the Parliament. The Bill proposes changes to the

legislation which are intended to improve the operation of the legislation while maintaining the existing balance between law enforcement interests in the one hand and privacy and civil liberties concerns on the other.

Resources devoted to telecommunications interception

3.10 The guidelines for annual reports require information which shows resources devoted to the administration of the Act. As a number of Commonwealth and State agencies are involved in conducting telecommunications interceptions under the Act, each with different accounting systems, it is difficult to provide

precise figures as to the total costs involved. The figures in Table 1 below were supplied by each agency and present a reasonably accurate indication of the total recurrent costs of interception over the reporting year. However, as agencies do not necessarily treat particular items of expenditure in the same way, caution should be exercised in comparing costs incurred by individual agencies. It should also be

Developments in the reporting year 11

noted that, unless otherwise stated, figures are for recurrent costs only and do not include one off expenditures of a capital nature.

Table 1 - Recurrent Costs of Interceptions in 1992-93 - User Agencies

Salaries Administrative Support TID Support Line Rental TOTAL

AFP4 1,793,968 444,952 2,238,920

NCA 833,000 ΙΙΟ,ΟΟΟ2 176,000 169,000 1,288,000

NSW POLICE3

1,602,105 389,7574 187,000 211,000 2,389,862

NSWCC5 91,000 94,4276 185,427

ICAC7 34,000 19,7008 ΙΟ,ΟΟΟ9 1 0 63,700

VIC POLICE

2,100,704 891,75340 220,834 303,39841 3,515,689

SA POLICE 561,800 69,30042 55,500 78,000 763,600

TOTAL 7,016,577 2,019,889 649,334 761,398 10,445,198

4 The Telecommunications Interception Services Branch conducts interceptions under warrants issued to the AFP. These costs should be distinguished from those of the Telecommunications Interception Division which conducts interceptions on behalf of State agencies and recovers part of its running and establishment costs from those agencies as well as a notional contribution from the TISB. 2 Includes $16,000 for one off costs of capital items, and $66,000 for one off general administrative

expenses.

3 NSW Police Electronic Services performs interceptions and pays line rental costs on behalf of the NSW Crime Commission. 4 Includes $181,625 for plant costs, and $159,912 for computer and audio maintenance. 5 See footnote 3 above. 6 Includes $64,800 for maintenance costs, and $13,627 for one off plant and equipment costs.

7 The Independent Commission Against Corruption has only had a telecommunications interception facility operational since February 1993, and these figures are the costs incurred since that date. 8 Includes $15,700 for equipment costs. 9 Payment made under a cost share agreement with the Australian Federal Police.

10 Includes $151,178 for maintenance of recording system and $94,477 for contract staff for provision of transcripts. 14 $23,500 was recovered from Telecom Australia for poor quality of lines and overcharging for use of Austpac.

42 Includes $30,700 for plant, equipment and maintenance agreements.

CHAPTER 4

INFORMATION REQUIRED UNDER THE ACT

4.1 This chapter contains the information which is specifically required to be included in this report under the Act. Section 99 of the Act requires the Attorney- General, as the Minister administering the Act, to have prepared, as soon as practicable after each 30 June, a written report relating to the preceding year which

complies with Division 2 of Part IX of the Act.

4.2 Division 2 of Part IX of the Act comprises sections 99,100,101,102, and 103. These sections specify the nature of the information which is required to be set out in the report. This information is intended to provide some indication of the nature and extent of telecommunications interceptions under the Act.

4.3 The Act requires the information to be set out in relation to each agency entitled to seek the issue of a warrant authorising interception (and, under section 102, in relation to all eligible authorities). In addition, the information must be set out in aggregate form (combining the details provided for all agencies), to give an

impression of the overall extent of interception.

Presentation of the information

4.4 The Act does not specify the format in which the required information is to be presented. As with previous annual reports under the Act, the information has been set out in tabular form. Since much of it is statistical, this makes it easier to find specific details, and facilitates comparisons with previous years. Accordingly, the

figures presented in the two preceding annual reports have been included in the tables.

The information required

4.5 Details of the precise information required under each section in Division 2 of Part IX follow in the subsequent paragraphs of this chapter. Briefly, however, the general requirements under each section are as follows -Section 100 requires details of applications which have been made for

the issue of interception warrants and of the warrants which were actually issued.

Section 101 requires information about the period for which those warrants were specified to be in force, as well as the period for which the warrants were actually in force.

Section 102 requires information indicating the effectiveness of warrants. This information relates to the arrests, prosecutions and

14 Telecommunications (Interception) Act 1979 - Annual Report 1992-93

convictions which took place during the reporting year and which were based on intercepted information.

Section 103 stipulates that the report shall set out such additional matters (if any) as have been prescribed under the Act. No additional matters have been prescribed for the purpose of this section.

Which agencies may seek telecommunications interception warrants?

4.6 During the reporting period, the following agencies were entitled to seek interception warrants for law enforcement purposes:

the Australian Federal Police;

the National Crime Authority;

the Police Force of Victoria;

the New South Wales Police Force;

the Police Force of South Australia;

the New South Wales Independent Commission Against Corruption; and

the New South Wales Crime Commission.

Information required under section 100

4.7 Section 100 requires the report to set out 'relevant statistics' and other details relating to applications which have been made for Part VI warrants, as well as to the warrants which were actually issued as a result of those applications. These statistics are to be provided for each 'Commonwealth agency' and for each 'eligible authority'

of a State that was an 'agency' at any time during the reporting period. During the reporting period, these agencies were the ones specified at paragraph 4.6 above.

Meaning of various terms

4.8 Televant statistics' is defined in section 5(1) to mean all of the following -(a) how many applications of a particular kind were made;

(b) how many applications of that kind were withdrawn or refused; and

(c) how many warrants were issued on applications of that kind.

4.9 Tart VI warrants' are warrants issued by a Judge authorising the interception of telecommunications in connection with the investigation of a class 1 or class 2 offence.

Information required under the Act 15

General statistics relating to applications for Part VI warrants - paragraphs 100(l)(a) and 2(a)

4.10 Paragraphs 100(l)(a) and (2)(a) of the Act contain the requirements for information concerning applications for Part VI warrants generally. Under paragraph 100(l)(a), the report must set out the relevant statistics about applications for Part VI warrants that each agency made during the reporting year. Paragraph

100(2)(a) requires the report to set out the same information in aggregated form. Table 3 sets out the information required by these paragraphs.

Table 3 - Information required by paragraphs 100(l)(a) and (2)(a) of the Act

AGENCY RELEVANT STATISTICS APPLICATIONS FOR PART VI WARRANTS 90/91 91/92 92/93

AUSTRALIAN Made 188 186 213

FEDERAL Refused/ withdrawn 0 0 1

POLICE Issued 188 186 212

NATIONAL Made 28 30 77

CRIME Refused/withdrawn 0 0 5

AUTHORITY Issued 28 30 72

NSW Made 79 70 52

POLICE Refused /withdrawn 0 1 0

Issued 79 69 52

NSW Made 24 36 38

CRIME Refused/ withdrawn 1 0 0

COMMISSION Issued 23 36 38

Made 0 0 8

ICAC Refused/ withdrawn - - 0

Issued - - 8

SOUTH AUSTRALIAN Made 25 35

POLICE Refused/ withdrawn N /A 0 0

Issued 25 35

VICTORIAN Made 62 119 110

POLICE Refused / withdrawn 0 0 0

Issued 62 119 110

Made 381 466 533

TOTAL Refused / withdrawn 1 1 6

[s.!00(2)(a)J Issued 380 465 527

Statistics relating to telephone applications for warrants - paragraphs 100(l)(b) and (2)(b)

4.11 Subsection 40(2) of the Act makes provision for applications for Part VI warrants to be made by telephone in urgent circumstances. Under section 43, particulars of these circumstances must be supplied to the Judge when the application is being made.

Information required under the Act 17

Table 5 - Information required by paragraphs 100(l)(c) and (2)(c) of the Act

AGENCY RELEVANT STATISTICS RENEWAL APPLICATIONS 90/91 91/92 92/93

AUSTRALIAN Made 34 24 42

FEDERAL Refused / withdrawn 0 0 0

POLICE Issued 34 24 42

NATIONAL Made 8 10 19

CRIME Refused/withdrawn 0 0 0

AUTHORITY Issued 8 10 19

NSW Made 4 10 2

POLICE Refused/withdrawn 0 0 0

Issued 4 10 2

NSW Made 1 2 2

CRIME Refused / withdrawn 0 0 0

COMMISSION Issued 1 2 2

Made 0 0 2

ICAC Refused/withdrawn - - 0

Issued - - 2

SOUTH AUSTRALIAN Made 5 4

POLICE Refused / withdrawn N /A 0 0

Issued 5 4

VICTORIAN Made 14 16 11

POLICE Refused/withdrawn 0 0 0

Issued 14 16 11

Made 61 67 82

TOTAL Refused/ withdrawn 0 0 0

[s.l00(2)(c)J Issued 61 67 82

Applications for warrants authorising entry on premises - paragraphs 100(l)(d) and (2)(d)

4.14 Subsection 48(1) of the Act provides that an application for a warrant may include a request that the warrant authorise entry on premises. A Judge may issue a warrant which authorises entry on specified premises in order to install, maintain, use or recover equipment or a line used in intercepting communications made to or

from the service. Paragraphs 100(l)(d) and (2)(d) of the Act contain the requirements for information concerning applications for Part VI warrants which included requests for authorisation of entry onto premises. Under paragraph 100(l)(d), the report must set out the relevant statistics about renewal applications

for each agency. Paragraph 100(2)(d) requires the report to set out the same information in aggregated form for all agencies. This information is set out in Table 6.

18 Telecommunications (Interception) Act 1979 - Annual Report 1992-93

Table 6 - Information required by paragraphs 100(l)(d) and (2)(d) of the Act

AGENCY RELEVANT STATISTICS WARRANTS AUTHORISING ENTRY ON PREMISES 90/91 91/92 92/93

AUSTRALIAN Made 2 3 3

FEDERAL Refused/withdrawn 0 0 0

POLICE Issued 2 3 3

NATIONAL Made 0 0 0

CRIME Refused/withdrawn - - -

AUTHORITY Issued - - -

NSW Made 0 0 0

POLICE Refused/withdrawn - - -

Issued - - -

NSW Made 0 0 0

CRIME Refused/withdrawn - - -

COMMISSION Issued - - -

Made 0 0 0

ICAC Refused/withdrawn - - -

Issued - - -

SOUTH AUSTRALIAN Made 0 0

POLICE Refused/ withdrawn N/A - -

Issued - -

VICTORIAN Made 1 0 0

POLICE Refused/ withdrawn 0 - -

Issued 1 - -

Made 3 3 3

TOTAL Refused/withdrawn 0 0 0

[s.l00(2)(d)] Issued 3 3 3

Warrants issued with specific conditions or restrictions - paragraphs 100(l)(e) and (2)(e)

4.15 Subsection 49(1) of the Act provides that a warrant may specify conditions and restrictions relating to interceptions under the warrant. Paragraphs 100(l)(e) and (2)(e) of the Act contain the requirements for information concerning the issuing of Part VI warrants which specified such conditions and restrictions. Paragraph

100(l)(e) requires this to be set out in relation to warrants issued on applications by each agency. Paragraph 100(2)(e) requires the same information in aggregated form for all agencies. This information is set out in Table 7.

Information required under the Act 19

Table 7 - Information required by paragraphs 100(l)(e) and (2)(e) of the Act

AGENCY WARRANTS ISSUED WITH CONDITIONS OR RESTRICTIONS 90/91 91/92 92/93

AUSTRALIAN FEDERAL POLICE

0 4 3

NATIONAL CRIME AUTHORITY

1 1 1

NSW POLICE 12 1 3

NSW CRIME COMMISSION

0 1 2

ICAC 0 0 5

SOUTH AUSTRALIAN POLICE N /A 0 1

VICTORIAN POLICE 0 0 9

TOTAL [s.l00(2)(e)J

13 7 24

Categories of serious offences specified in Part VI warrants, according to the agency concerned - paragraphs 100(l)(f) and (g)

4.16 Sections 45 and 46 of the Act require a Judge to be satisfied that the interception would be likely to yield information which would be likely to assist the requesting agency's investigation of the particular serious offence or offences in question before issuing a warrant. Subsection 49(7) stipulates that a warrant shall

set out short particulars of each serious offence in relation to which the Judge was so satisfied.

4.17 Paragraph 100(l)(f) requires that the report set out, for each agency, the categories of serious offences specified under subsection 49(7) in Part VI warrants issued on applications by the agency during that year. Paragraph 100(l)(g) requires details of the number of serious offences in each category which were so specified. The information required by this paragraph is set out in Tables 8 to 13. It is not

possible to include all of the relevant information covering each agency for the last three years within one table. Thus, the required details for each agency are

Information required under the Act 21

Table 11 - Information required by paragraphs 100(l)(f) and (g) of the Act in relation to the New South Wales Crime Commission

CATEGORIES OF SERIOUS OFFENCES

NUMBER OF SERIOUS OFFENCES SPECIFIED FOR EACH CATEGORY 90/91 91/92 92/93

Murder 0 0 0

Loss of Life 0 0 1

Trafficking in Drugs 23 36 34

Serious Fraud 0 0 3

Table 12 - Information required by paragraphs 100(l)(f) and (g) of the Act in relation to the South Australia Police

CATEGORIES OF SERIOUS OFFENCES

NUMBER OF SERIOUS OFFENCES SPECIFIED FOR EACH CATEGORY 90/91 91/92 92/93

Murder N/A 3 11

Loss of Life N/A 10 1

Trafficking in Drugs N/A 10 23

Serious Fraud N/A 2 0

Table 13 - Information required by paragraphs 100(l)(f) and (g) of the Act in relation to the Victorian Police

CATEGORIES OF SERIOUS OFFENCES

NUMBER OF SERIOUS OFFENCES SPECIFIED FOR EACH CATEGORY 90/91 91/92 92/93

Murder 7 34 40

Kidnapping 4 8 0

Narcotics Offence 7 7 0

Loss of Life 4 0 1

Serious Personal Injury 1 19 17

Damage to Property 2 0 0

Trafficking in Drugs 28 52 44

Serious Fraud 1 6 17

22 Telecommunications (Interception) Act 1979 - Annual Report 1992-93

Table 14 - Information required by paragraphs 100(l)(f) and (g) of the Act in relation to the Independent Commission Against Corruption

CATEGORIES OF SERIOUS OFFENCES

NUMBER OF SERIOUS OFFENCES SPECIFIED FOR EACH CATEGORY 90/91 91/92 92/93

Murder - - 7

Serious Personal Injury - - 8

Trafficking in Drugs - - 8

Serious Fraud - - 7

Serious Loss to Revenue - - 7

Categories of serious offences specified in Part VI warrants, in relation to all agencies - paragraphs 100(2)(f) and (g)

4.18 Paragraphs 100(2)(f) and (g) complement the requirements under paragraphs 100(l)(f) and (g), in that they require that the details provided for each agency under paragraphs 100(l)(f) and (g) be set out in aggregated form. This information is set out in Table 15. Figure 1 is a pie chart representing the main types

of offences in the investigation of which interception is used. It is notable that drug related offences predominate.

Table 15 - Information required by paragraphs 100(2)(f) and (g) of the Act

CATEGORIES OF SERIOUS OFFENCES

TOTAL NUMBER OF SERIOUS OFFENCES SPECIFIED FOR EACH CATEGORY 90/91 91/92 92/93

Murder 28 61 63

Narcotics Offence 173 195 226

Kidnapping 4 9 0

Special Investigation 41 24 63

Loss of Life 11 18 13

Serious Personal Injury 1 21 25

Damage to Property 4 0 0

Trafficking in Drugs 168 173 215

Serious Fraud 12 10 35

Serious Loss of Revenue 5 2 7

Information required under the Act 23

Figure 1: Offences Specified in Warrants - 1992-93

Trafficking 33%

Murder 10%

Other 10%

Loss of Life Χ ξ

2% Special Investigation

Narcotics 35%

10%

Warrants authorising the Australian Federal Police to intercept telegrams - subsection 100(3)

4.19 Part IV of the Act (comprising sections 20A, 20B, 21,23, and 25) authorise the Australian Federal Police to inspect and make copies of telegrams under the authority of a warrant. Subsection 100(3) requires the report to set out the relevant statistics about applications for Part IV warrants that were made during the

reporting year. The information required by this subsection is contained in Table 16.

Table 16 - Information required by subsection 100(3) of the Act

Applications made under Part IV j 90/91 91/92 92/93 Made 0 0 0

Withdrawn/refused - - -

Issued - - -

4.20 As indicated by this table, no applications for Part IV warrants have been made for the past three years. In practical terms, no such warrants could be issued, since Telecom no longer offers a telegram service. Provisions repealing Part IV and the requirement to report on it are included in the Telecommunications

(Interception) Amendment Bill 1993.

Information required under the Act 25

were actually in force. Paragraphs 101(2)(a)&(b) require the same information to be set out in aggregated form to cover all agencies. The required information is set out in Table 17.

Table 17 - Information required by paragraphs 101(l)(a)&(b) and(2)(a)&(b) of the Act: duration of original warrants

AGENCY

AVERAGE PERIOD SPECIFIED IN WARRANTS (DAYS)

AVERAGE PERIOD WARRANTS IN FORCE (DAYS)

90/91 91/92 92/93 90/91 91/92 92/93

AFP 55 68 64 42 46 40

NCA 83.2 85.7 83.5 59.9 77.3 55.7

NSW POLICE 78.2 72.5 79.4 41.5 52.8 57.2

NSWCC 84.3 88.2 90 32.8 43.6 40

ICAC - - 90 - - 40.8

SA POLICE N /A 68 71 N /A 47.5 43

VIC POLICE 81.8 86.6 83.7 50.6 41 43.4

AGGREGATE [s.l01(2)(a) & (b)] 76.5 78.2 80.2 45.4 51.4 45.7

Duration of renewal warrants under Part V I- paragraphs 101(l)(c)&(d) and(2)(c)&(d)

4.27 Paragraph 101(l)(c) requires the report to set out corresponding information in relation to renewal warrants. The required information is set out in Table 18.

Table 18 - Information required by paragraphs 101(l)(c)&(d) and (2)(c)&(d) of the Act: duration of renewal warrants

AGENCY

AVERAGE PERIOD SPECIFIED IN RENEWAL (DAYS)

AVERAGE PERIOD RENEWAL IN FORCE (DAYS)

90/91 91/92 92/93 90/91 91/92 92/93

AFP 56 68 77 42 51 61

NCA 90 78 85.6 72.5 76.4 75.4

NSW POLICE 57.8 67.2 90 56 46.2 53

NSWCC 90 75 90 ■ 11 38 40

ICAC - - 90 - - 32

SA POLICE N /A 71 63.5 N /A 46.8 55.3

VIC POLICE 85.7 90 79.1 74 67.2 48.7

AGGREGATE [s,101(2)(c)&(d)] 75.9 74.9 82.2 51.1 54.3 52.2

26 Telecommunications (Interception) Act 1979 - Annual Report 1992-93

Number of final renewals of warrants under Part VI - paragraphs 101(l)(e) and(l)(e)

4.28 Paragraph 101(l)(e) requires that the report set out - in relation to each agency - the number of 90 day final renewals, 150 day final renewals, and 180 day final renewals, which ceased to be in force during the year under review. The meaning of the term 'final renewals' is explained in paragraph 4.25, above. This information gives some indication of the overall duration of warrants which have been renewed. Paragraph 101(2)(e) requires the same information to be set out in aggregated form to cover all agencies. The information required by these paragraphs is set out in Table 19.

Table 19 - Information required by paragraphs 101(l)(e) and (2)(e) of the Act number of 'final renewals'

AGENCY

90 DAYS 150 DAYS 180 DAYS

90/91 91/92 92/93 90/91 91/92 92/93 90/91 91/92 92/93 AFP 22 12 15 2 2 8 0 0 7

NCA 2 0 2 1 0 0 3 2 8

NSW POLICE 2 2 2 0 3 0 0 1 0

NSWCC 0 0 0 0 0 0 0 0 0

ICAC - - 0 - - 0 - - 0

SA POLICE N /A 2 3 N /A 1 0 N /A 0 0

VIC POLICE 2 0 2 2 9 9 4 3 0

TOTAL [ss.(2)(e)] 28 16 24 5 15 17 7 6 15

Duration of Part IV warrants - subsection 101(4)

4.29 Subsection 101(4) of the Act requires the report to set out details concerning the duration of Part IV warrants issued on applications made during the reporting year. These must include:

(a) the average of the respective periods specified in the warrants as the periods for which the warrants were to be in force; and

(b) the average of the respective periods during which those warrants were actually in force.

4.30 The nature of Part IV warrants is explained in paragraph 4.19-20, above. As noted in Table 16, no Part IV warrants (which authorise the AFP to intercept telegrams) were sought or issued during the reporting period. Hence, no details as to the duration of such warrants are available.

Information required under the Act 27

Information required under section 102

4.31 As the heading to section 102 of the Act suggests, that section requires the report to contain information about the 'effectiveness of warrants' issued under the Act. Section 102 sets out the particulars which the report must include. These details must be provided both in relation to each agency, and - in aggregated form -

to all agencies.

4.32 Section 102 requires the report to disclose details of the number of arrests made on the basis of information which was, or included, 'lawfully obtained information', as well as details relating to the proceedings by way of prosecution of 'prescribed offences' in which 'lawfully obtained information' was given in

evidence.

4.33 The details required under section 102 are to be provided in relation to all 'eligible authorities', rather than for all agencies. The definition of 'eligible authority' is in paragraph 2.10 above. In essence, this means that the details must be provided in relation to the Police Forces of all the States, as well as for the AFP and

the NCA, NSW Crime Commission and ICAC.

Meaning of various terms

4.34 The term 'lawfully obtained information' is defined in subsection 6E(1) as follows:

(1) Subject to subsection (2), a reference in this Act to lawfully obtained information is a reference to information obtained (whether before or after the commencement of this section):

(a) by intercepting, otherwise than in contravention of subsection 7(1), a communication passing over a telecommunications system; or

(b) by virtue of a warrant issued under section 11 or 11A or Part IV.

Subsection 6E(2) is not relevant to section 102.

4.35 The term 'prescribed offence' is defined in subsection 5(1) to mean

(a) a serious offence [that is, a class 1 or class 2 offence];

(b) an offence against subsection 7(1) [which prohibits, subject to exceptions, the interception of telecommunications] or section 63 [which prohibits, subject to exceptions, the communication, recording, or use of intercepted information];

(c) an offence against a provision of Part VIIB of the Crimes Act 1914 [which relate to the protection of the telecommunications network and installations];

(d) any other offence punishable by imprisonment for life or for a period, or maximum period, of at least 3 years; or

Information required under the Act 29

(b) the categories of the prescribed offences proceedings by way of prosecutions for which ended during that year, being proceedings in which, according to records of the agency or authority, lawfully obtained information was given in evidence; and

(c) in relation to each of those categories:

(i) the number of offences in that category; and

(ii) the number of offences in that category in respect of which such convictions were recorded.

Paragraphs 102(2)(b) &(c) require the same information to be set out in aggregate form, to cover all such bodies. The information required by these paragraphs is set out in Tables 21 and 22.

30 Telecommunications (Interception) Act 1979 - Annual Report 1992-93

Table 21 - Information required by subparagraph 102(l)(b) of the Act - Prosecutions on the basis of lawfully obtained information

CATEGORIES OF PRESCRIBED OFFENCES

AFP NCA NSW

POLICE NSWCC SA POLICE VIC

POLICE TOTAL

Murder 0 0 5 0 2 3 10

Kidnapping 0 0 0 0 0 0 0

Narcotics Offence

51 0 1 0 0 0 52

Loss of Life 0 0 1 0 2 0 3

Serious Personal Injury 0 7 21 0 0 0 28

Damage to Property

0 0 0 0 0 3 3

Trafficking in Drugs

31 2 220 22 3 98 376

Serious Fraud 0 6 0 0 0 0 6

Serious Loss of Revenue 0 0 0 0 0 0 0

Interception Offence

0 0 0 0 0 0 0

Telecommunic­ ations Offence 1 0 0 0 0 0 1

Other Offences 0 11 24 0 0 24 59

TOTAL [s 102(2)(b)]

83 26 272 22 7 128 538

Information required under the Act 31

Table 22 - Information required by subparagraph 102(l)(c) of the Act - Convictions on the basis of lawfully obtained information

CATEGORIES OF PRESCRIBED OFFENCES

AFP NCA NSW

POLICE NSWCC SA POLICE VIC

POLICE TOTAL

Murder 0 0 2 0 2 3 7

Kidnapping 0 0 0 0 0 0 0

Narcotics Offence

40 0 1 0 0 0 41

Loss of Life 0 0 0 0 0 0 0

Serious Personal Injury 0 0 13 0 0 0 13

Damage to Property

0 0 0 0 0 2 2

Trafficking in Drugs

16 2 212 21 3 94 348

Serious Fraud 0 0 0 0 0 0 0

Serious Loss of Revenue 0 0 0 0 0 0 0

Interception Offence

0 0 0 0 0 0 0

Telecommunic­ ations Offence 1 0 0 0 0 0 1

Other Offences 0 0 9 0 0 13 22

TOTAL [s 102(2)(b)]

57 2 237 21 5 112 434

4.39 The Independent Commission Against Corruption and the Police Forces of Queensland, Western Australia, Tasmania and the Northern Territory recorded no prosecutions or convictions on the basis of lawfully obtained information in 1992-93.

4.40 The statistics presented in Tables 20,21 and 22 should be interpreted with some caution, particularly in presuming a relationship between the number of arrests, prosecutions and convictions in a reporting year. An arrest recorded in one

Information required under the Act 33

Table 23 - Information required by paragraphs 102(1) (b) &(c); and 102(2) (b) &(c) of the Act - Prosecutions and convictions on the basis of lawfully obtained information

AGENCY

Categories of Offences prosecuted

Number of Offences Prosecuted for each Category

Number of Convictions Recorded for each Category

90/91 91/92 92/93 90/91 91/92 92/93

AUSTRALIAN Class 1 19 85 51 19 42 40

FEDERAL Class 2 55 143 31 55 26 16

POLICE Other 7 9 1 7 10 1

Force Total 81 237 83 81 78 57

NCA Class 1 2 0 0 2 0 0

Class 2 0 3 15 0 1 2

Other 0 0 11 0 0 0

Force Total 2 3 26 2 1 2

NSW Class 1 3 3 6 3 3 3

POLICE Class 2 27 156 242 27 148 225

Other N /A 37 24 N /A 32 9

Force Total 30 196 272 3 0 183 237

VIC Class 1 N /A 0 3 N /A 0 3

POLICE Class 2 - 0 101 - 0 96

Other - 1 24 - 1 13

Force Total N/A 1 128 N/A 1 112

SA POLICE Class 1 0 0 2 0 0 2

Class 2 0 0 5 0 0 3

Other 0 0 0 0 0 0

Force Total 0 0 7 0 0 5

NSWCC1 Class 2 21 23 22 0 20 21

ICAC N /A - - - - - -

NT POLICE N /A - - - - - -

QLD POLICE N /A - - - - - -

TAS POLICE N /A - - - - - -

W A POLICE N /A - - - - - -

TOTAL Class 1 24 88 62 24 45 48

[s.l02(2)(b) & Class 2 103 325 416 82 195 363

(c)] Other 7 47 60 7 43 23

Grand Total 134 460 538 113 283 434

1The return supplied by the NSWCC for 1990-91 stated that all proceedings to that date had been committal hearings in the lower courts. Therefore no convictions were recorded before 1991-92.

Appendix A: Statutory Reporting Requirements 35

- an indication of the level of activity wider the Act (for example, the number of cases dealt with);

The statistics contained in chapter 4 of the report (see, in particular, the tables accompanying paragraphs 4.7-4.30) provide an indication of the degree to which warrants are sought and used under the legislation.

- information which shows the resources devoted to administration of the Act and assists assessment of the efficiency and effectiveness of the deployment of those resources);

Paragraphs 3.10 to 3.13 of the report deal with the resources devoted to telecommunications interception for law enforcement purposes under the Act.

- information which assists assessment of the social and economic effects of the Act and its effects on individual citizens; and

The statistics provided in Chapter 4 provide an indication of the extent to which telecommunications interception is conducted for law enforcement purposes in Australia. The material in the tables accompanying paragraphs 4.16 to 4.18 is intended to assist in determining the purposes for which warrants are sought. The material in the tables accompanying

paragraphs 4.36 to 4.41 is intended to assist in determining the social benefits that flow from the use of interception techniques by law enforcement agencies (in the form of more effective and efficient law enforcement).

- if appropriate, a summary of expected or proposed future developments, including any proposed amendments to the Act.

As noted at paragraph 3.9, a review of the Act was completed in the previous year. The Telecommunications (Interception) Amendment Bill has been drafted on the basis of the recommendations made in the review, and has been introduced into Parliament.

In the preparation of annual reports on the operation of Acts, attention is to be given to clarity of layout. Indexes are to be included if they would make the contents of reports significantly more accessible.

Attention has been paid to the clarity of layout throughout the report. Given the relatively short length of the report, it has not been considered necessary to include a full index. Rather, the table of contents and this appendix have been prepared so as to provide an easy means of locating any material of special interest.

APPENDIX I

COMPLIANCE WITH ANNUAL REPORT GUIDELINES

As part of its response to a recommendation made by the Senate Standing Committee on Legal and Constitutional Affairs, the Government has developed a set of guidelines to govern the preparation of annual reports on the operation of Acts. This appendix lists the guidelines, and shows where the relevant information is

located in the report.

Where an Act requires annual reports on the operation of the Act or part of it, those reports should contain:

• a table of contents;

A table of contents appears at pages iii-iv of the report.

• a reference to the relevant legislation;

The legislation is referred to at paragraphs 1.1 and 4.2 of the report. The table of contents has been structured so as to demonstrate which parts of the report relate to the various provisions in the Act.

• descriptive and statistical material on the operation of the Act during the year, including:

- an outline of the objects of the Act;

The objects of the Act are outlined at paragraph 2.6.

- information which assists in determining whether the Act is promoting the achievement of those objects;

Information relating to the means by which the Act regulates telecommunications interceptions is included in chapter 2. Statistics relating to the use of information obtained under the Act appear in the tables accompanying paragraphs 4.36-4.41.

- a summary of any relevant legislative amendments;

No amendments were made during the reporting year (paragraph 3.2). Reference is made to future proposed amendments in paragraph 3.9.

- a summary of any relevant judicial decisions;

No significant judicial decisions were made during the reporting year (paragraph 3.4).

m m m — r e a — ΓτττιΐίΤΒίΒίΜίΜΐΐΜΐΐι^ 1 ~ 1 "~^τΓ~™ι^-π^τΓΐττΓ*τ)Βπί?ιπί —

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

PARLIAMENTARY PAPER No. 3 of 1994

ORDERED TO BE PRINTED ISSN 0727-418