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Wednesday, 3 December 2008
Page: 12299

Mr McCLELLAND (Attorney-General) (9:49 AM) —I move:

That this bill be now read a second time.

The main purpose of this bill is to amend the Telecommunications (Interception and Access) Act 1979 (the T(IA) Act) to facilitate the introduction of Queensland law enforcement agencies into the telecommunications interception regime.

The inclusion of Queensland agencies will mean that the interception regime established by the T(IA) Act will become truly national. Queensland is currently the only jurisdiction whose law enforcement agencies do not have interception powers.

The bill also implements several minor technical amendments.

Interception powers for Queensland

Currently Queensland law enforcement agencies cannot seek or execute an interception warrant. This is because Queensland has not, to date, enacted legislation that satisfies the T(IA) Act’s recordkeeping, reporting and inspection obligations.

These obligations are a key component of the interception regime as they establish the minimum standards interception agencies must comply with to ensure accountability under the T(IA) Act.

Without such provisions there is limited recourse to check whether an agency is meeting its accountability obligations under the T(IA) Act—an unacceptable outcome given the invasive nature of telecommunications interception.

The importance of these requirements is reflected in section 35 of the T(IA) Act. This provides that a state law enforcement agency cannot be declared by the Commonwealth minister to be an interception agency where state law does not reflect the accountability framework established in the T(IA) Act.

The Queensland government has announced its intention to introduce legislation that will comply with this requirement.

That state legislation will also include an oversight role for the Queensland Public Interest Monitor (the PIM) in the pre-application and application processes for an interception warrant sought by a Queensland agency.

Amendments are also included in this bill which will recognise the request by the Queensland government for the inclusion of the PIM’s role.

Without specific reference to the PIM in the T(IA) Act, there would be a real risk that the Queensland legislation would be inoperative under section 109 of the Constitution on the basis of inconsistency with the other provisions of the T(IA) Act.

While the T(IA) Act establishes a national regime, a role for the PIM can be accommodated within the T(IA) Act that recognises the important place the PIM has in law enforcement matters in Queensland.

The PIM is unique to Queensland and was introduced in 1997 as part of a package of measures aimed at reforming police powers and creating relevant safeguards following the state’s long history, starting with the Fitzgerald report in the 1980s, of review into police activities.

This is not the first time the Commonwealth government has recognised the role of the PIM: the PIM has an oversight role in relation to applications for control orders under the Criminal Code, and for applications for surveillance device warrants.

This bill will amend the T(IA) Act to allow the Public Interest Monitor to make submissions to an eligible judge or member of the Administrative Appeals Tribunal considering an application by a Queensland agency for an interception warrant and to question the agency applying for the warrant.

The PIM will also be able to question any third party called on by the decision maker to provide additional information about the application.

The proposed role for the Public Interest Monitor in the interception regime only applies to interception applications made by Queensland state interception agencies. The Public Interest Monitor will not have a role in relation to applications made by other interception agencies.

The Telecommunications (Interception and Access) Act will also be amended to require a decision maker to consider any view put forward by the Public Interest Monitor in deciding whether or not to issue an interception warrant. The Public Interest Monitor will not be compelled to make a submission on an application nor will the Public Interest Monitor’s view determine the outcome.

The T(IA) Act already requires decision makers to consider a number of matters before issuing an interception warrant, including the public interest in protecting people’s privacy from excessive or unnecessary intrusion.

A submission by the PIM will be an additional consideration a decision maker must take into account in forming their view and can be outweighed by the decision maker’s consideration of the factors currently listed under the T(IA) Act.

Finally, it is important to note that this bill does not of itself give Queensland law enforcement agencies access to interception powers.

In addition to enacting accountability provisions, the requesting state must enter into an agreement to pay all expenses connected with the issue of a warrant before I can declare, under section 34 of the T(IA) Act, a state agency to be an interception agency for the purposes of the T(IA) Act.

However, given the section 109 issue in relation to the Public Interest Monitor to which I have referred, Queensland cannot enact legislation implementing comparable accountability requirements until the T(IA) Act is amended to recognise a role for the Public Interest Monitor.

Other amendments

The bill will make other minor and technical amendments that will ensure the ongoing relevance and effectiveness of the telecommunications and surveillance regimes.

The bill will amend the T(IA) Act to correct an error introduced by the Telecommunications Interception Legislation Amendment Act 2008 (the amendment act). The effect of section 5AC(4) of the T(IA) Act, as inserted by the amendment act, is that the commissioner of a state police force can only authorise a senior executive Australian Federal Police employee who is a member of the AFP to be a ‘certifying officer’ for the purpose of the act.

This bill clarifies that the intention of the provision is that a commissioner can delegate the power to act as a ‘certifying officer’ to a state police force officer whose rank is equivalent to that of a senior executive AFP employee who is a member of the AFP but clearly within the state jurisdiction.

This amendment will remove any doubt about the validity of actions taken by persons purportedly authorised to act under the current provision.

The bill also amends the definition of ‘certifying officer’ in the T(IA) Act and the definition of ‘appropriate authorising officer’ in the Surveillance Devices Act to reflect recent changes to the structure of the Queensland Crime and Misconduct Commission.

In conclusion, this bill is an important milestone in the history of telecommunication interception in this country.

By laying the foundation for Queensland’s entry into the interception regime established by the T(IA) Act, this bill marks a significant step forward in the creation of a national approach that extends beyond state boundaries to equip all law enforcement agencies with the appropriate tools necessary to protect the safety and security of Australians.

I commend the bill to the House and I indicate my appreciation that the shadow minister has stayed in the House for the presentation of these bills.

Debate (on motion by Mr Wood) adjourned.