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STANDING COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
16/07/2007
Telecommunications (Interception and Access) Amendment Bill 2007

CHAIR —Welcome. Thank you for being here. The Police Federation has lodged its submission, No. 4, with the committee. Do you wish to make any alterations or additions to the submission?

Mr Burgess —Not to the submission itself.

CHAIR —I invite you to make a short opening statement, at the conclusion of which I will invite members of the committee to ask questions.

Mr Burgess —Thank you for the opportunity to appear here today on behalf of the Police Federation of Australia, which represents the professional and industrial interests of Australia’s 50,000 serving police officers. As we have outlined in our submission, we strongly support the current and proposed provisions in the bill, which enable the use of telecommunications intercepts, stored communications and telecommunications data for the enforcement of the criminal law, including against corruption. However, we are concerned that the proposals in the bill in respect of secondary disclosure provisions will mean that police officers, simply due to their occupation, will have a lesser standard of rights with respect to privacy than other workers and citizens in general.

As our submission highlights, our key area of concern with the bill centres around the proposed new section 182(2) dealing with secondary disclosure or uses offence. This section will allow the disclosure and use of telecommunications data against police officers in non-criminal actions, such as disciplinary proceedings, and this will be achieved by using the terminology for the enforcement of the law imposing a pecuniary penalty. It is this provision which is likely to impinge on the area of police disciplinary proceedings, as the disciplinary offences applicable to most police jurisdictions are found within state and territory legislation and have provisions for pecuniary penalties by way of fines even for very minor matters. We accept that along with extensive powers conferred on police comes greater accountability. However, you would be aware that each jurisdiction already has in place a variety of mechanisms to ensure such accountability. As it is, police officers perform difficult and stressful roles and are subject to significant internal and external disciplinary proceedings and oversight arrangements in the event that an individual error of judgment or misdemeanour occurs, or workplace behavioural issues need to be dealt with.

We have provided the committee with correspondence from the Attorney-General to the PFA dated 28 May 2007 in response to our concerns. It is our interpretation of his letter that any impact of this bill on police disciplinary matters is an unintended consequence of the proposed legislation. That being the case, we urge the committee—

CHAIR —Was that a quote?

Mr Burgess —No, that is not a quote.

CHAIR —That is your advice?

Mr Burgess —Yes. That is our interpretation of the letter.

CHAIR —Thank you.

Mr Burgess —Any impact of this bill on police disciplinary matters is an unintended consequence of the legislation. That being the case, we urge the committee to investigate options that will support the intent of the bill but alleviate our concerns that minor police disciplinary matters will be caught up in the secondary disclosure provisions. We have proposed one possible amendment to the bill and will be happy to work with the committee to explore other options that may give comfort to our concerns but at the same time meet the intent of the bill.

CHAIR —We appreciate your evidence.

Senator LUDWIG —Do you have a copy of the Attorney-General’s letter before you?

Mr Burgess —I do.

Senator LUDWIG —Turn to the third paragraph, which begins ‘As you may be aware’.

Mr Burgess —Yes.

Senator LUDWIG —It then relates to disclosure of telecommunications data, and then in the penultimate paragraph it states:

A secondary disclosure of telecommunications occurs when the recipient of the primary disclosure passes that information on to another body.

Putting that together with the second paragraph on page 2:

The new legislation would not alter the threshold ... In other words, this permits the secondary disclosure of information to an agency in circumstances where the receiving agency would itself have been able to access the information directly from the carrier.

Do you understand generally what the term ‘telecommunications data’ would include?

Mr Burgess —The explanatory memorandum gives me some idea what he was talking about.

Senator LUDWIG —There is no definition of ‘telecommunications data’ in the bill itself, though?

Mr Burgess —No.

Senator LUDWIG —If we rely on at least that, with respect to the secondary disclosure of information, your concern would be that if it was a chapter III court it would be limited but if it is not a chapter III court—that is, it relates to tribunals and so on—it could include ordinary disciplinary matters that your members may be subject to.

Mr Burgess —That is in essence our concern. In the letter from the Attorney-General, in the third last paragraph on page 2, he states:

This is by reason of the meaning of ‘pecuniary penalty’, which is limited to specific monetary penalties set out in relevant legislation and imposed by a court.

As I indicated in our submission, most of the legislation in respect of the disciplinary issues for police officers is contained within various pieces of legislation in the states and territories with respect to police acts and police discipline, and in each of those they deal with how they may be dealt with, such as tribunals, appeals courts and even hearing officers, which we would suggest would potentially come under the definition of a court. Therefore, that leaves us with a concern that very minor matters that potentially carry a financial penalty could be caught up in this bill.

Senator LUDWIG —The letter then states, at the bottom of page 2:

Nor will they permit the general use of telecommunications data in police disciplinary proceedings, either on the basis of a primary or secondary disclosure.

Does that not give you comfort?

Mr Burgess —No, it does not.

Senator LUDWIG —Why is that?

Mr Burgess —We are concerned that the bill will give the ability to disclose information, as limited as it might be, which will therefore allow people to undertake fishing expeditions for further information that they might think they can gather, and when they might not have been aware of any of this in the first place. This is not about preventing appropriate use of this legislation or this bill to target police officers undertaking criminal or corrupt activities. Our concern centres around the prospect of it being used in respect of what all of us in this room would consider to be minor disciplinary issues. Because the relevant legislation that underpins those disciplinary issues has provisions for monetary penalties, they will be picked up.

Senator LUDWIG —Have you considered how the bill could be altered to accord with your view or the Attorney-General’s view that ‘the general use of telecommunications data in police disciplinary proceedings, either on the basis of a primary or secondary disclosure’ should not be permitted?

Mr Burgess —We have suggested in our submission—and I would be guided by the expertise of the committee as well—that to delete the amendment would cause some concern. But we have talked about trying to clearly define what you mean by a ‘court’, which might exempt those issues around disciplinary proceedings, such as appeals boards, tribunals, hearing officers or the like, so that you would not find those minor disciplinary issues being swept up by this. This goes back to our original proposition. Our reading of the Attorney-General’s response is that he does not know that those issues would be clearly picked up. In fact, he says that our concerns are only partially correct. Our interpretation is that, if we are correct, this is an unintended consequence of the legislation.

Senator LUDWIG —What types of disciplinary proceedings are contemplated by you when you say that they would be captured? Can you provide an example of those?

Mr Burgess —In virtually all of our jurisdictions with the exception of a couple, there is provision for a fine for the most minor matter. An example would be insubordination or someone speaking inappropriately to a motorist. All of those matters are potentially subject to a fine. In essence, it is a case of how long is a piece of string as to what issues are picked up in this piece of legislation.

Senator LUDWIG —How is that regulated?

Mr Burgess —Under the various state—

Senator LUDWIG —The state policing legislation that applies?

Mr Burgess —Yes. It is also our understanding that the Attorney has said to some people—and it has not been said to us—that perhaps we should look at the respective state acts to take out a notion of pecuniary penalties. Whilst that would be a worthwhile objective, it certainly would not be simple to have those six or seven other pieces of legislation potentially amended so that there is no impact on this particular bill.

Senator LUDWIG —You would be unaware of whether you would gain support from the commissioners of the relevant policing—

Mr Burgess —Therein lies the difficulty. It would be a big exercise to go down that road. Whereas what we are suggesting is that, if it is not the intent of the legislation to pick up those matters, then let us make it clear. If it is about criminal matters, et cetera—those serious types of matters—let us make sure that that is what we are talking about. We need to make that clear. If it is not about minor matters of police discipline, we need to make sure those things cannot be picked up in the bill.

Senator PARRY —Can you give us an example of what you think might be picked up with respect to the passing on of secondary information? I have been racking my brain to think of a practical example. Would you be able to provide a scenario that you think would fit?

Mr Burgess —I have not turned my mind to an example. I am sure with your policing background you can probably imagine that somewhere along the line someone will. I will use the ATO as an example, because it is an outside agency. It could be investigating a tax agent for matters in respect of tax law. There might have been some contact between a police officer and the tax agent about something unrelated to the criminal offence but potentially related to something the officer may or may not have done in their role as a police officer, and this alerts the ATO to the fact that this is something that should be passed on to the respective police department. It need not be a criminal matter and it need not be involved in the ATO investigation. However, it might give rise to a police disciplinary matter. As minor as it might be, this potentially gives the ATO the authority to hand that information on to the respective police department.

Senator PARRY —Would not the ATO have a policy within its charter of not passing on information that is not directly related to the original investigation? If you are dealing with a third agency, I would have thought there would be other protocols in place.

Mr Burgess —I do not know whether or not there are.

Senator PARRY —It is hard when we are talking hypothetically.

Mr Burgess —The proposed legislation would in fact allow them to do that if they so desired. It could be another police agency. It is the same thing.

Senator PARRY —The potential is there?

Mr Burgess —There are no arguments about investigating someone for a criminal offence. We are not arguing about that. But if something else comes to light that is not criminal from someone in another jurisdiction, is there then a compulsion on them to hand over that information as minor as it might be?

Senator KIRK —I wanted to go back to the definition of ‘court’, because that seems to be critical here. You say in your submission that it ‘should be defined as a legally constituted criminal or civil court over which a judge or magistrate presides.’ Would you want it to extend to civil courts as well? The thrust of what you have been saying is that it really should be in relation to criminal matters.

Mr Burgess —Again, I stand to be corrected, but my understanding of the definitions in the bill is that this would apply where pecuniary penalties were applicable. A civil court would be picked up in this definition. What we are trying to do is differentiate a police disciplinary arrangement from a criminal or civil court.

Senator KIRK —Are you happy with disciplinary matters that might take place in a civil court? Are you just trying to distinguish between disciplinary tribunals and courts?

Mr Burgess —Yes.

Senator KIRK —In a more general sense, what do you see as the practical difference between the way telecommunications data is currently dealt with and the new arrangement that is being proposed, in practical terms?

Mr Burgess —We have tried to keep ourselves concise on this particular issue—

Senator KIRK —Just on the disclosure.

Mr Burgess —as opposed to the bill in its generic terms. In essence, all I am saying is that this new provision changes the ball game in that respect, in that this data could now be handed over where it might relate to a disciplinary offence. That would be a matter that would ultimately have to be tested, but the data could be handed across.

Senator KIRK —Of course, you would like to see the amendment deleted but, failing that, could this be solved by narrowly defining ‘court’ so that it excludes these other matters?

Mr Burgess —We are not about preventing the bill from going forward.

Senator KIRK —I understand that.

Mr Burgess —We are not arguing about the bill in its generic sense. We are concerned about that one small aspect of it, which obviously is subject to debate. In his letter, the Attorney-General said that our concerns are only partially correct. We could have a debate about that. Somewhere along the line that will be tested and will either be found to be right or wrong. All we are saying is that it is not the real thrust of the bill to chase police who may or may not have been involved in a disciplinary matter. The real thrust of the bill is far greater than that. Aside from the part about which we are concerned, we are not arguing about the rest of the bill.

Senator PARRY —Were we to delete proposed section 182(2)(c), which is the issue that you are concerned about, what gap would be created in the legislation? That might be substantial. I am of the view that it is a state issue. You might have to get state commissioners or state ministers to change the legislation. Again, I cannot think of a strong example of how police are going to be caught up in this from a practical perspective. I know the potential exists.

Mr Burgess —As I said, we talked about the two options, including deleting that section. I do not know what sort of hole that would leave in the bill. It might be substantial. We are not trying to do that. However, we are trying to prevent this particular issue. Were we to raise an example today, people can say that that is not likely to be the case. But having been around long enough, as I am sure you have, I know somewhere down the line it will be tested.

Senator PARRY —That might be for good merit, but we do not know. Apart from proposed section 182(2)(c), is the bill fine?

Mr Burgess —Yes. We have not raised any other particular aspects or concerns.

CHAIR —You have all of us thinking about your suggestion or proposal for a possible amendment. I am looking at proposed section 182(2)(c), which we have been referring to. The explanatory memorandum cites an example regarding the tax office:

… if during the course of an investigation in relation to taxation fraud, the Australian Taxation Office obtains telecommunications data that concerns drug trafficking, the Australian Taxation Office could lawfully disclose this information to a relevant police agency to investigate.

You do not have any problems with that type of situation?

Mr Burgess —No.

CHAIR —In fact, you would be supporting that?

Mr Burgess —Totally. That is our concern. We do not want to do anything that will affect the proper use of this bill with respect to issues of clearly attacking criminality, serious police corruption—those sorts of issues. That is not what we are about.

CHAIR —You are supporting the bill but subject to these concerns?

Mr Burgess —We are concerned that a small group of police officers—and there may be potentially some others—could be swept up in this over minor disciplinary matters. For example, under the Commonwealth public sector act I do not think there are pecuniary penalties. This is unique to a few small groups of employees, one being police.

CHAIR —How do you read the Attorney-General’s response in the second last paragraph, where he says that this definition therefore excludes low-level purely internal administrative or managerial actions?

Mr Burgess —I do not know that it does. That is our concern. We potentially have some sort of disagreement with the Attorney-General’s letter, if that makes sense. We are not convinced that that is exactly what will be the case. As I said to Senator Parry earlier on, I have no doubt that somewhere down the line this will be tested. If we were found to be wrong, that would be pleasing.

CHAIR —He does go on to state:

… it should be emphasised that the information to be disclosed in relation to the police disciplinary proceeding must first have been obtained for the purposes of investigating a ‘serious offence’ sufficient to justify the issuance of a telecommunications interception warrant …

Mr Burgess —That is right. But it may have been a serious offence committed by somebody else.

CHAIR —Generally, with respect to your overview of the legislation, what operational benefits do you see for police under the current arrangements and under this new legislation?

Mr Burgess —There are many. Telecommunications intercepts and other uses of the data are an invaluable tool. We had these discussions in this room several weeks ago at the Australian Crime Commission hearings. Any tools that assist police officers and other law enforcement agencies in investigating serious criminality and corruption will be supported by us.

CHAIR —Some of the submissions that we have received draw a distinction between the definition of ‘data’ and the definition of ‘content’. Do you have a similar view, that there is clearly a difference in definition and that they should be seen as such?

Mr Burgess —Senator Ludwig raised the definitions. I worked off what the explanatory memorandum considered to be the differences, and I was reasonably comfortable with that.

CHAIR —That is what I am checking. Are you comfortable with the proposals in terms of the definitions?

Mr Burgess —I am, albeit I have no other instructions to be other than that.

Senator PARRY —Mr Burgess, you indicated that there were two jurisdictions in the Commonwealth that do not have pecuniary penalties. Was that Tasmania and South Australia?

Mr Burgess —No. My understanding is that it is the Australian Federal Police and the New South Wales police. Although there has been some argument in New South Wales that they were silent in terms of one particular aspect, it relates to the more serious disciplinary matters. My understanding of the others, including Tasmania, is that there are provisions for fines at any level.

Senator PARRY —That is what I thought. We have received two submissions, one from the South Australia Police, signed by Commissioner Hyde, and the other from the Tasmania Police, signed by Assistant Commissioner Tilyard, indicating that both jurisdictions are comfortable with the legislation. There is no mention of secondary disclosure. Whether that is not an issue with them or whether they are expecting that it will be raised with you, I just wanted to draw that out to make sure—

Mr Burgess —It is an issue that we have focused on because it is an issue that is raised by our members. Perhaps it is not an issue that is glaringly confronting a police commissioner, who is probably more concerned about the operational aspects of a bill such as this.

Senator PARRY —I thought I would mention that they were very comfortable with that.

CHAIR —I note that today we received a submission from the Western Australia Police. Senator Ludwig has one final question.

Senator LUDWIG —I want to test your comfort with the legislation. You stated that you have gleaned from the EM what ‘telecommunications data’ is, and I think you gleaned that from an outline of the division?

Mr Burgess —It is on page 6 of the EM.

Senator LUDWIG —Page 6 then states:

Telecommunications data specifically excludes the content or substance of the communication.

It talks about telephone information, the parties involved, the time of the calls and the duration, websites visited and starting times of sessions. That is what you generally understand from the EM. The chair gave an example from page 13:

... for example, if during the course of the investigation in relation to taxation fraud the Australian Taxation Office obtains telecommunications data that concerns drug trafficking ...

We will dwell on that for a moment to test your comfort. It stretches my imagination how the ATO would be aware that it concerned drug trafficking if it only had available telecommunications data, as I outlined earlier, and if it did not include substance or content?

Mr Burgess —I would be drawing the link between telephone intercept and the ultimate data that was collected as a result of that. That is the way I would be drawing the link. If you take that as the example in the ATO—

Senator LUDWIG —Come back to page 13. It stated ‘the Australian Taxation Office obtains’. So the ATO is able to have telecommunications data that concerns drug trafficking. How would it know that, unless, say, the IP address had ‘I’m a drug trafficker’ attached to it?

Mr Burgess —I would imagine that it would have been verified by other means. To my way of thinking when you look at those two, there would have been a telephone intercept. It would have clearly identified certain activities taking place and subsequent data taken, which would have included telephone numbers, and a whole range of potential contacts would have been the link between the data and the drug trafficking.

CHAIR —For example, if it went to a known drug trafficker, they know the phone number and it has been confirmed in the data that is received?

Senator LUDWIG —Does the ATO keep a list of drug traffickers?

Mr Burgess —I do not know. That would have been verified in some other way. That would have been potentially a telephone intercept and then the subsequent data collected would have supported the telephone links.

Senator LUDWIG —We will leave it to the Attorney-General’s Department to provide an explanation as to how the ATO would know that—

Mr Burgess —You have put them on notice.

Senator LUDWIG —other than from the content of the material itself. What I was trying to then discover was how broad the telecommunications data is in terms of what it can actually portray. I am not really asking you to comment. The Attorney-General’s Department should be able to provide a reasonable explanation. But it is a matter that can impact upon your members.

Mr Burgess —Data on its own will not always give you much information. Oftentimes the data might be verified by something else.

Senator LUDWIG —The content line or the information within it usually will provide the information. The data itself may not necessarily do that. It depends on what you include in ‘telecommunications data’. It is a long piece of string.

Mr Burgess —We are concerned about minor police disciplinary offences. There is a difference if it is potential serious criminality.

Senator LUDWIG —That is accepted. Also, the law enforcement agencies have been expanded in the introduction to this legislation to include CrimTrac and others by regulation. Are you comfortable with that?

Mr Burgess —That is not an issue that we dealt with or discussed with respect to our submissions. Primarily, we were focused on one aspect. It would only be my view of the issue if I was to relay it to the committee.

Senator LUDWIG —If you do have a view about that, would you like to provide that to the committee before it reports?

Mr Burgess —Yes.

CHAIR —I wanted some clarity of the definition of an ‘authorised officer’. Do you have any concerns about that definition and whether there is sufficient clarity such that you know who that authorised officer is within the management structure? Is that an issue for you?

Mr Burgess —It is not an issue that we picked up. By and large, we are supportive of the bill. None of those other issues were matters raised by our respective membership. The only issue raised was that in respect of the secondary disclosure provisions.

CHAIR —Have you sought views and comments from your members around the country?

Mr Burgess —Yes.

CHAIR —Thank you very much. I appreciate your input.

Mr Burgess —Thank you.

[2.36 pm]