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Telecommunications and Other Legislation Amendment (Miscellaneous Amendments) Bill 2019

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2016-2017-2018-2019

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

SENATE

 

 

 

 

 

TELECOMMUNICATIONS AND OTHER LEGISLATION AMENDMENT (MISCELLANEOUS AMENDMENTS) BILL 2019

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

( Circulated by authority of the

Minister for Home Affairs, the Honourable Peter Dutton MP )

 



 

Telecommunications and Other Legislation Amendment (Miscellaneous Amendments) Bill 2019

 

GENERAL OUTLINE

 

1.               The Telecommunications and Other Legislation Amendment (Miscellaneous Amendments) Bill 2019 (the Bill) will amend the Independent National Security Legislation Monitor Act 2010 (the INSLM Act) and the Telecommunications Act 1997 (the Telecommunications Act) .

2.               The INSLM Act currently requires the Independent National Security Legislation Monitor (INSLM) to review the operation, effectiveness and implications of the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 (the Assistance and Access Act) as soon as practicable after the 18 month period beginning on the day the Assistance and Access Act received Royal Assent (8 December 2018) (see subsection 6(1D) of the INSLM Act).

3.               This Bill expedites the review so that it is conducted before the end of the 18 month period beginning on the day the Assistance and Access Act received Royal Assent. The Bill ensures the effective, timely and expert monitoring of the Assistance and Access Act which is designed to allow law enforcement and national security agencies to continue to discharge their legitimate and lawful functions in the increasingly complex modern communications environment .

4.               This Bill also amends the definition of ‘interception agency’ in the Assistance and Access Act. Section 317B currently defines ‘interception agency’ as being the Australian Federal Police, the Australian Crime Commission and the Police Force of a State or the Northern Territory. This Bill extends this definition to include the Australian Commission for Law Enforcement Integrity, the Independent Commission Against Corruption of New South Wales, the New South Wales Crime Commission, the Law Enforcement Conduct Commission of New South Wales, the Independent Broad-based Anti-corruption Commission of Victoria, the Crime and Corruption Commission of Queensland, the Independent Commissioner Against Corruption (SA) and the Corruption and Crime Commission (WA).

5.               The addition of these agencies brings the definition of ‘interception agency’ into line with the agencies empowered to intercept live communications under a warrant issued by a Judge or Administrative Appeals Tribunal ( AAT) member pursuant to the Telecommunications (Interception and Access) Act 1979 (TIA Act). This amendment will provide these anti-corruption bodies with tools - in the form of industry assistance - to investigate serious crime, and law enforcement misconduct and corruption across the public sector.

6.               The addition of these agencies to section 317B of the Telecommunications Act is followed by a series of consequential amendments.

FINANCIAL IMPACT STATEMENT

The financial impact of these amendments is nil.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

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

 

Telecommunications and Other Legislation Amendment (Miscellaneous Amendments) Bill 2019

 

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

 

Overview of the Bill

1.       The Telecommunications and Other Legislation Amendment (Miscellaneous Amendments) Bill 2019 (the Bill) amends subsection 6(1D) of the Independent National Security Legislation Monitor Act 2010 (the INSLM Act) and section 317B of the Telecommunications Act 1997 (the Telecommunications Act).

2.       The purpose of the amendment to subsection 6(1D) of the INSLM Act is to require the Independent National Security Legislation Monitor (INSLM) to review the operation, effectiveness and implications of the amendments made by the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 (the Assistance and Access Act) before the end of the 18-month period beginning on the day the Assistance and Access Act received Royal Assent on 8 December 2018.

 

3.       The amendment changes the timeframe in which the INSLM must review the operation, effectiveness and implications of the Assistance and Access Act. The previous requirement was to conduct the review as soon as practicable after the 18-month period beginning on the day the Assistance and Access Act receives Royal Assent. The amendment requires the review to be conducted before the end of the 18-month period to provide timely assurance that the Assistance and Access Act is operating as intended. It also strengthens the existing oversight and scrutiny on the operation in the Assistance and Access Act.

 

4.       Importantly, this amendment does not change the purpose and operation of the INSLM review. As a result, the INSLM will consider whether the measures provided by the Assistance and Access Act contain appropriate protections for individual rights, remains proportionate to terrorism or national security threats, and remains necessary.

 

5.       The amendment ensures the effective, timely and expert monitoring of the Assistance and Access Act, which was designed to address critical issues including the impact of encrypted communications and devices on national security and law enforcement investigations.

6.       The Bill also amends section 317B of the Telecommunications Act and makes a series of consequential amendments. These amendments allow additional agencies to use the industry assistance powers contained in Part 15 of the Telecommunications Act. These agencies are the Australian Commission for Law Enforcement Integrity the Independent Commission Against Corruption of New South Wales, the New South Wales Crime Commission, the Law Enforcement Conduct Commission of New South Wales, the Independent Broad-based Anti-corruption Commission of Victoria, the Crime and Corruption Commission of Queensland, the Independent Commissioner Against Corruption (SA) and the Corruption and Crime Commission (WA).

7.       Extending industry assistance powers to these bodies will assist them to investigate serious crime, and law enforcement misconduct and corruption across the public sector.

Human rights implications

8.       The change to the INSLM review is a minor amendment and will not change the function of the INSLM review or the operation of powers under the Assistance and Access Act. This amendment does not engage any of the applicable rights or freedoms.

 

9.       The amendments in Schedule 2 extend the industry assistance powers in the Assistance and Access Act to anti-corruption agencies. As such, Schedule 2 engages the following human rights:

·          protection against arbitrary or unlawful interference with privacy contained in Article 17 of the International Covenant on Civil and Political Rights (ICCPR)

·          the right to effective remedy contained in Article 2(3) of the ICCPR, and

·          protection of the right to freedom of expression contained in Article 19 of the ICCPR.

10.   Schedule 2 of the Bill engages the protection against arbitrary or unlawful interference with privacy contained in Article 17 of the ICCPR. Article 17 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.

11.   The right to privacy under Article 17 can be permissibly limited in order to achieve a legitimate objective and where the limitations are lawful and not arbitrary. The term ‘unlawful’ in Article 17 of the ICCPR means that no interference can take place except as authorised under domestic law. Additionally, the term ‘arbitrary’ in Article 17(1) of the ICCPR means that any interference with privacy must be in accordance with the provisions, aims and objectives of the ICCPR and should be reasonable in the particular circumstances. The United Nations Human Rights Committee has interpreted ‘reasonableness’ to mean that any limitation must be proportionate and necessary in the circumstances.

12.   The purpose of the Bill, and the associated limitations on the right to privacy, are to protect public safety and address crime and corruption. As with law enforcement agencies currently covered by the Access and Assistance Act, investigative agencies and anti-corruption agencies face the same investigative challenges in the modern communications environment caused by the use of encryption to protect personal, commercial and government information. Extending the technical assistance framework to investigate and anti-corruption agencies ensures that they have the same powers to seek assistance in the investigation of law enforcement misconduct and corruption in the public sector.



13.   The Bill aims to protect the rights and freedoms of individuals by providing investigative and anti-corruption agencies with the tools they need to maintain confidence in the conduct of public affairs and officers.

Schedule 2

Protection against arbitrary or unlawful interferences with privacy — Article 17 of the ICCPR

Technical assistance requests and technical assistance notices

14.   The provisions that will enable anti-corruption agencies to request assistance (technical assistance request) and compel assistance (technical assistance notice) from designated communications providers (providers) engage the right to protection against arbitrary and unlawful interferences with privacy in Article 17 of the ICCPR. This is because communications providers may facilitate investigative and anti-corruption agencies’ access to private communications and data where an underlying warrant or authorisation is present.

15.   Updated section 317G of the Telecommunications Act will allow the head of the expanded list of interception agencies to issue a technical assistance request asking a provider to do specified acts or things. Interception agency currently includes the Australian Federal Police, the Australian Crime Commission, and State and Territory police forces. With Schedule 2, interception agency will also include State crime and corruption commissions and the Australian Commission for Law Enforcement Integrity. A provider who receives a request is not legally required to fulfil the request but may do so voluntarily.

16.   Updated section 317L of the Telecommunications Act will allow the head of the expanded list of interception agencies to issue a technical assistance notice where the requirements imposed by the notice are reasonable, proportionate, practicable and technically feasible. Once received, a provider is required to comply with a notice.

17.   The assistance that can be requested under a technical assistance request or technical assistance notice must be connected to the activities of a provider and the listed acts or things in new section 317E. This includes providing technical information about a service operated by a provider, assisting with the testing or modification of an agency’s internal system or modifying the characteristics of a service. Therefore, any interference with the right to privacy would not be arbitrary because a technical assistance request or notice may only be issued for a specified list of acts or things.

18.   Under a technical assistance request or technical assistance notice, a provider cannot be asked to provide the content of a communication or private telecommunications data, such as the date, time and duration of a communication without an existing warrant or authorisation under the TIA Act. Subsection 317ZH(1) makes clear that notices have no effect to the extent that they would require a provider to do a thing for which a warrant or authorisation under the TIA Act, the Surveillance Devices Act 2004 (SD Act) , the Crimes Act 1914 , the Australian Security Intelligence Organisation Act 1979 (ASIO Act), the Intelligence Services Act 2001 (IS Act) or equivalent State and Territory laws would be required.

19.   Subsection 317ZH(2) provides that for the purposes of the limitations in subsection 317ZH(1), the Acts referred to are assumed to apply extra-territorially. This means that the limitation under section 317ZH(1) in relation to the need for a warrant or authorisation applies equally to onshore and offshore providers. The head of an agency cannot require an overseas provider to do anything that would require a warrant or authorisation if the provider was a carriage service provider located in Australia. Consequently, the existing legislative schemes will govern how agencies request and receive personal information from all providers. The existing legislative safeguards will continue to apply.

20.   For example, the TIA Act prohibits the interception of communications unless a criminal law enforcement agency meets strict statutory thresholds and receives a warrant from a Judge or AAT member. The Judge or AAT member can only issue a warrant if he or she is satisfied that the intercepted information would assist in the investigation of a serious offence (generally offences punishable by at least 7 years - see section 5D of the TIA Act). They are required to have regard to the nature and extent of interference with the person’s privacy, the gravity of the conduct constituting the offence, the extent to which information gathered under the warrant would be likely to assist an investigation, and other available methods of investigation. The TIA Act also has prohibitions on communicating, using and making records of communications.

21.   Where an existing warrant or authorisation under the TIA Act is in place, a notice or request may be issued to facilitate agency access to personal information or communications. For example, a technical assistance notice may ask a provider to decrypt information that would otherwise be unintelligible if the provider has the ability to do so.

22.   The Bill pursues the legitimate objective of protecting public order by addressing crime and corruption. The Bill includes safeguards to protect the right to privacy. The amendments only go so far as is necessary in limiting the right to privacy. Specifically, the assistance requested or compelled must relate to the performance of a function or exercise of a power conferred by law.

23.   In the case of a technical assistance notice, an agency head may only issue the notice if satisfied the acts required are reasonable, proportionate, practicable and technically feasible. This means the decision-maker must evaluate the individual circumstances of each notice. The decision-maker must turn his or her mind to the interests of the agency, the interests of the provider, as well as wider public interests, such as the impact on privacy.

24.   In determining what is reasonable and proportionate, the decision-maker must have regard to: the interests of national security; the interests of law enforcement; the legitimate interests of the designated communications provider to whom the notice relates; the objectives of the notice; the availability of other means to achieve the objectives of the notice; the legitimate expectations of the Australian community relating to privacy and cybersecurity, and any other matters (if any) that the decision-maker considers to be relevant.

25.   The ability to issue a technical assistance request or technical assistance notice is restricted to senior executive staff in all agencies. Accordingly, requests will only be issued by persons with the appropriate seniority and expertise who are in a position to effectively determine the proportionality, reasonableness, practicability and technical feasibility of any request.

26.   A technical assistance notice cannot have the effect of requiring a provider to implement or build a systemic weakness or vulnerability into a form of electronic protection. This protection limits the privacy implications of the power by ensuring the security of third parties’ communications is not impacted. While systemic weaknesses cannot be built into services or devices, a technical assistance notice can require the selective deployment of a weaknesses or vulnerability in a particular service, device or item of software on a case-by-case basis. Deployment of this kind is necessary to access protected information of suspect individuals and gather intelligence or evidence in the course of an investigation. This will ensure that the powers achieve legitimate, national security and law enforcement objectives without unduly jeopardising the legitimate privacy and information security interests of innocent parties.

27.   The measures are permissible limitations on individual privacy. The assistance that agencies may request or compel from providers is not arbitrary as it is prescribed by law. The provisions achieve the legitimate objective of protecting public order. The Bill will assist agencies to fulfil their functions in a digital environment characterised by encryption and enable them to discharge their anti-corruption functions more effectively. Misconduct and corruption are regularly conducted through electronic communication services and devices operated by private providers. Industry is in a unique position to help agencies degrade, disrupt and prosecute criminal activity of this kind.

28.   The amendments do not constitute an arbitrary or unlawful incursion into a person’s right to privacy. To the extent that there is a restriction on an individual’s right to privacy, statutory safeguards ensure any interference is reasonable, necessary and proportionate.

Technical capability notices

29.   The power for the Attorney-General to issue technical capability notices to designated communications providers engages the right to privacy in Article 17 of the ICCPR. This Bill expands the list of interception agencies who can seek to use the Technical Capability Notice provisions.

30.   To the extent that a person’s rights to privacy under Article 17 may be limited, the limitations are reasonable , proportionate and necessary. The power is proportionate and not arbitrary. It is set out in law and subject to a number of safeguards.

31.   Section 317T of the Telecommunications Act allows the Attorney-General, subject to the approval of the Minister for Communications, to issue a technical capability notice requiring a provider to do acts or things to ensure that the provider is capable of giving help to an interception agency.

32.   The types of capabilities that may be required to be built under a technical capability notice are limited and must be directed towards ensuring a provider is capable of providing the types of assistance set out in section 317E or as otherwise determined by the Minister by legislative instrument in section 317T(5). Providers cannot be required to build a decryption capability or a capability that removes electronic protection or renders systemic methods of encryption or authentication less effective.

33.   Capabilities built under a technical capability notice may assist agencies to access private communications for investigative purposes. However an existing warrant or authorisation will still be required. The new provisions complement, but do not replace, the existing warrant processes with in-built legislative safeguards.

34.    Before issuing a technical capability notice the Attorney-General must be satisfied that the requirements imposed by the notice are reasonable, proportionate and that compliance with the warrant is practicable and technically feasible. This means the Attorney-General must evaluate the individual circumstances of each notice and turn his or her mind to the interests of the agency, the interests of the provider, as well as wider public interests, such as the impact on privacy.

35.   In determining what is reasonable and proportionate, the Attorney-General must have regard to: the interests of national security; the interests of law enforcement; the legitimate interests of the designated communications provider to whom the notice relates; the objectives of the notice; the availability of other means to achieve the objectives of the notice; the legitimate expectations of the Australian community relating to privacy and cybersecurity, and any other matters (if any) that the Attorney-General considers to be relevant.

36.   Capabilities required under a notice must be related to the established functions of an interception agency and related to enforcing the law or safeguarding national security.

37.   The power to issue a technical capability notice is limited to the Attorney-General, subject to the approval from the Minister for Communications. This double ministerial approval ensures direct Ministerial oversight that ensures views of both the first law officer of the Commonwealth and the Minister responsible for policy relating to the communications industry is taken into account as part of the decision-making for issuing a technical capability notice.

38.   Prior to a notice being issued, there is a mandatory 28 day consultation period with the relevant provider. This will ensure that the powers are not exercised arbitrarily and give providers an opportunity to make a submission on a notice before having to comply with its requirements. The same obligation to consult applies to a variation of an existing technical capability notice.

39.   A technical capability notice cannot require a provider to implement or build a systemic weakness or vulnerability into a form of electronic protection. This includes actions which would make systemic methods of authentication or encryption less effective. This protection limits the privacy implications of the power by ensuring that in issuing a technical capability notice, it cannot require providers to undermine systems that protect the security of personal information. Similar to technical assistance notices, these limitations do not prevent the building of a capability that is able to be deployed selectively to weaken the electronic protection of a particular service, device or item of software.



 

Use and disclosure of information

40.   Information obtained through the industry assistance powers - including as used by the expanded list of interception agencies under this amendment - will primarily be of a technical nature. Information may include procurement plans, information regarding products and services, network or service design plans and other technical information necessary to execute a request for assistance or to build a capability. Once received, section 317ZF of the Act restricts the ability of agencies (including anti-corruption agencies being added as part of this Bill) to disclose this information without a lawful exception.

41.   Strict non-disclosure provisions in 317ZF apply to any information in, or in accordance with, a technical assistance request, technical assistance notice and technical capability notice. Unauthorised disclosure of this information attracts a maximum penalty of imprisonment for five years.

42.   To the extent that the information obtained is primarily of a technical nature, the right to privacy is not engaged. However, in the event that information provided contains information about a person, the prohibition on disclosure without lawful authority promotes the right to privacy. The restrictions on the use and disclosure of information further promote the right to privacy by ensuring any information obtained is only shared for the necessary and legitimate functions of Australian law enforcement, security and intelligence agencies. This will include application to anti-corruption agencies due to the proposed amendments under Schedule 2 of this Bill.

43.   The measures in this Bill will not alter the existing framework in the TIA Act for anti-corruption agencies to obtain telecommunications interception information, stored communications and telecommunications data. If an anti-corruption agency receives private information, which was otherwise unintelligible, with the assistance of a notice or request, the range of protections for use and disclosure of this information will apply, including under the TIA Act, Telecommunications Act and Privacy Act 1988 .

Right to freedom of expression - Article 19 of the ICCPR

Technical assistance requests, technical assistance notices and technical capability notices

44.   Article 19(2) of the ICCPR provides that everyone shall have the right to freedom of expression, including the right ‘to seek, receive and impart information and ideas of all kinds and regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

45.   Furthermore, Article 19(3) of the ICCPR provides that the exercise of the rights provided for in Article 19(2) carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary (in part) for the protection of national security or of public order, or of public health or morals.

46.   It is plausible but unlikely, that the measures in this Bill could cause a person to minimise their use of communication services if they believe government agencies can ask providers to facilitate access to communications carried through these services, for example by removing forms of electronic protection applied to their communications if they are capable of doing so.

47.   However, the amendments will not enable anti-corruption agencies to access communications absent a warrant or authorisation under the TIA Act. Warrants and authorisations under the TIA Act are subject to strict thresholds . For example, interception warrants can generally only be issued to investigate serious offences attracting a maximum penalty of at least 7 years’ imprisonment.

48.   The measures in the Assistance and Access Act advance a legitimate objective of protecting Australia’s national security and public order by allowing law enforcement, security and intelligence agencies to respond to the modern communications environment and effectively access information which will assist investigations and prosecutions. The inclusion of anti-corruption agencies advances this legitimate objective to ensure that the Australian community is be protected from serious corruption, and serious and organised crime.

49.   To the extent that a person refrains from or minimises their use of electronic communications in response to these powers, the additional restrictions on the purposes that the powers may be issued for and the limited things that may be required under these powers complement the protections of a warrant and ensure any limitation on the freedom of expression is necessary and proportionate. Additionally, to the extent that the addition of anti-corruption agencies do restrict the right to freedom of expression, such a restriction is contemplated by the ICCPR as Article 19(3) allows for restrictions for the protection of national security or of public order.

Right to effective remedy - Article 2(3) of the ICCPR

50.   Article 2(3) of the ICCPR protects the right to an effective remedy for any violation of rights and freedoms recognised by the ICCPR, including the right to have such a remedy determined by competent judicial, administrative or legislative authorities or by any other competent authority provided for by the legal system of the State. To the extent that a legal entity subject to a technical capability notice argues that complying with the notice would infringe the rights of natural persons affected by compliance with the notice, the remedies discussed here are applicable.

51.   Australian courts will retain jurisdiction for judicial review of a decision of an agency head to issue a technical assistance notice or the Attorney-General’s decision to issue a technical capability notice. This will ensure that an affected person, or a provider or behalf of an affected person, has an avenue to challenge unlawful decision making.

52.   The measures under the Assistance and Access Act do not provide for merits review of decision making and excludes judicial review under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act). This approach to review is consistent with similar decisions made for national security and law enforcement purposes - for example those made under the IS Act, ASIO Act, Inspector-General of Intelligence and Security 1986 Act and the TIA Act. Decisions of a law enforcement nature were identified by the Administrative Review Council in its publication What decisions should be subject to merits review? as being unsuitable for merits review.

53.   Anti-corruption agencies may require a technical assistance notice in order to access appropriate electronic evidence for an investigation that is underway and evolving. It is imperative that a technical assistance notice can be issued and used quickly. It would not be appropriate for a decision to issue a technical assistance notice to be subject to merits review or judicial review under the Administrative Decisions (Judicial Review) Act 1977 , as review could adversely impact the effectiveness and outcomes of an investigation. Decisions by the Attorney-General and Minister for Communications to issue a technical capability notice are particularly unsuitable for review as they are ministerial decisions to develop law enforcement and national security capabilities.

54.   The new industry assistance framework is designed to incentivise cooperation from industry, providing a regime for the Australian government and providers to work together to safeguard the public interest and protect national security. In the unlikely event that enforcement action is required; applications for enforcement under Division 5 of Part 15 of the Telecommunications Act will be considered independently by the Federal Court or the Federal Circuit Court.

Conclusion

55.   This Bill is compatible with human rights and promotes a number of human rights. To the extent that the Bill limits a human right, those limitations are reasonable, necessary and proportionate.

 



 

NOTES ON CLAUSES

Clause 1 - Short title

1.       This item provides for the short title of the Act to be the Telecommunications and Other Legislation Amendment (Miscellaneous Amendments) Act 2019 .

Clause 2 - Commencement

2.       This item provides for the commencement of the provisions in the Act. As set out in the table, each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

3.       Specifically, the provisions in this Act will commence the day after the Act receives Royal Assent.

 

4.       The date of commencement is appropriate to allow for the timely review of the Assistance and Access Act.

Clause 3 - Schedules

5.       Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.



 

Schedule 1—Review of the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 by the Independent National Security Legislation Monitor

Independent National Security Legislation Monitor Act 2010

Item 1             Paragraph 6(1D)(b)

6.       This item amends paragraph 6(1D)(b) of the INSLM Act to omit “as soon as practicable after”, and substitute “before the end of.”

 

7.       This amendment provides that the INSLM must review the operation, effectiveness and implications of the amendments made by the Assistance and Access Act before the end of the 18-month period beginning on the day that the Assistance and Access Act received Royal Assent on 8 December 2018.

 

8.       The purpose of this amendment is to improve the existing oversight arrangements and scrutiny of the operation of the Assistance and Access Act. Expediting the timeframes for the INSLM review provides timely assurance that the Assistance and Access Act is operating as intended.

 

9.       Importantly, this amendment does not change the purpose and operation of the INSLM review. As a result, the INSLM will consider whether the measures provided by the Assistance and Access Act contains appropriate protections for individual rights, remain proportionate to terrorism or national security threats, and remain necessary.

Schedule 2—Industry assistance to interception agencies

Telecommunications Act 1997

Item 1             Section 317B

10.   This item provides that the Corruption and Crime Commission (WA) means the Corruption and Crime Commission established by the Corruption, Crime and Misconduct Act 2003 (WA), the Independent Broad-based Anti-corruption Commission of Victoria means the Independent Broad-based Anti-corruption Commission established by the Independent Broad-based Anti-corruption Commission Act 2011 (Vic), and the Independent Commissioner Against Corruption (SA) means the person who is the Commissioner (within the meaning of the Independent Commissioner Against Corruption Act 2012 (SA)).

Item 2             Section 317B (after paragraph (a) of the definition of interception agency )

11.    This item inserts paragraph:

(aa)      the Australian Commission for Law Enforcement Integrity

 

Item 3             Section 317B (at the end of the definition of interception agency)

12.   This item inserts paragraphs:

(d)       the Independent Commission Against Corruption of New South Wales;

(e)        the New South Wales Crime Commission;

(f)        the Law Enforcement Conduct Commission of New South Wales;

(g)        the Independent Broad-based Anti-corruption Commission of Victoria;

(h)        the Crime and Corruption Commission of Queensland;

(i)         the Independent Commissioner Against Corruption (SA); and

(j)         the Corruption and Crime Commission (WA).

13.   The effect of Items 2 and 3 is to extend the industry assistance measures in Part 15 of the Telecommunications Act (as inserted by the Assistance and Access Act) to the agencies listed in Items 2 and 3. State anti-corruption bodies and the Australian Commission for Law Enforcement Integrity play an important role in identifying and investigating serious misconduct and corruption across the public sector, and maintaining confidence in the conduct of public frameworks and officers. The industry assistance measures will greatly facilitate the work of these bodies by improving their ability to access intelligible communications under warrant. Items 4 to 9 below make amendments that are consequential to the inclusion of these new bodies under the industry assistance scheme. These amendments provide that the new bodies are subject to the same requirements as the bodies which currently have access to the Part 15 industry assistance measures.

Item 4             Section 317B

14.   This item provides that the Law Enforcement Conduct Commission of New South Walesmeans the Law Enforcement Conduct Commission constituted by the Law Enforcement Conduct Commission Act 2016 (NSW), and member of the staff of the Independent Commissioner Against Corruption (SA) means a person who is engaged under subsection 12(1) of the Independent Commissioner Against Corruption Act 2012 (SA).

Item 5             Section 317ZM (after table item 1)

15.   This item inserts item 2 into the table in section 317ZM. Item 2 of the table lists the Australian Commission for Law Enforcement Integrity. Chief officer means the Integrity Commissioner appointed under section 175 of the Law Enforcement Integrity Commissioner Act 2006 . Officer means either the Integrity Commissioner or a staff member of the Australian Commission for Law Enforcement Integrity within the meaning of subsection 11(1) of that Act.

 

Item 6             Section 317ZM (at the end of the table)

16.   This item inserts items 5 to 11 into the table in section 317ZM.

 

17.   Item 5 of the table lists the Independent Commission Against Corruption of New South Wales. Chief officer means the Chief Commissioner as appointed under the Independent Commission Against Corruption Act 1988 (NSW). Officer means an officer of the Commission within the meaning of section 3 of that Act but it does not include a person engaged under section 104B of that Act to provide the Commission with services, information or advice.

 

18.   Item 6 of the table lists the New South Wales Crime Commission. Chief officer means the Commissioner appointed under section 8 of the Crime Commission Act 2012 (NSW). Officer means an officer of the Commission within the meaning of section 72 of that Act but it does not include a person engaged by the Commission as a consultant under subsection 74(2) of that Act.

 

19.   Item 7 of the table lists the Law Enforcement Conduct Commission of New South Wales. Chief officer means the Chief Commissioner appointed under section 18 of the Law Enforcement Conduct Commission Act 2016 (NSW). Officer means either the Chief Commissioner, or the Commissioner for Integrity appointed under section 18 of that Act, or an Assistant Commissioner appointed under section 20 of that Act, or a member of the staff of the Commission within the meaning of section 21 of that Act.

 

20.   Item 8 of the table lists the Independent Broad-based Anti-corruption Commission of Victoria. Chief officer means the Commissioner appointed under section 20 of the Independent Broad-based Anti-corruption Commission Act 2011 (Vic). Officer means a sworn IBAC Officer within the meaning of section 3 of that Act.

 

21.   Item 9 of the table lists the Crime and Corruption Commission of Queensland. Chief officer means the chairperson within the meaning of the Crime and Corruption Act 2001 (Qld). Officer means a commission officer as defined by paragraph (a) of the definition of commission officer in the Dictionary to that Act. Officer does not mean a person engaged under section 256 of that Act to provide the Commission with services, information or advice.

 

22.   Item 10 of the table lists the Independent Commissioner Against Corruption (SA). Chief officer means the Commissioner appointed under section 8 of the Independent Commissioner Against Corruption Act 2012 (SA). Officer means either: the Commissioner, or the Deputy Commissioner appointed under section 9 of that Act, or a member of the staff of the Independent Commissioner Against Corruption (SA) within the meaning of section 12 of that Act.

 

23.   Item 11 of the table lists the Corruption and Crime Commission (WA). Chief officer means the Commissioner appointed under section 9 of the Corruption, Crime and Misconduct Act 2003 (WA). Officer means an officer of the Commission within the meaning of section 3 of that Act. Officer does not mean a person engaged under section 182 of that Act to provide the Commission with services, information or advice.

 

Item 7             Subsection 317ZR(1) (after table item 1)

 

24.   This item inserts item 2 into the table in subsection 317ZR(1). Item 2 of the table provides that the chief officer of the Australian Commission for Law Enforcement Integrity may delegate his or her functions or powers to either an Assistant Integrity Commissioner appointed under section 185 of the Law Enforcement Integrity Commissioner Act 2006 or a staff member of the Australian Commission for Law Enforcement Integrity within the meaning of subsection 11(1) of that Act who is an SES employee or acting SES employee.

 

Item 8                         Subsection 317ZR(1) (at the end of the table)

 

25.   This item inserts items 5 to 11 into the table in subsection 317ZR(1).

 

26.   Item 5 of the table provides that the chief officer of the Independent Commission Against Corruption of New South Wales may delegate his or her functions or powers to either a Commissioner appointed under section 5 of the Independent Commission Against Corruption Act 1988 (NSW), or an Assistant Commissioner appointed under section 6A of that Act, or an officer of the Commission within the meaning of section 3 of that Act (other than a person engaged under section 104B of that Act) who is at executive level.

 

27.   Item 6 of the table provides that the chief officer of the New South Wales Crime Commission may delegate his or her functions or powers to an officer of the Commission within the meaning of section 72 of the Crime Commission Act 2012 (NSW) (other than a person engaged under subsection 74(2) of that Act) who is at executive level.

 

28.   Item 7 of the table provides that the chief officer of the Law Enforcement Conduct Commission of New South Wales may delegate his or her functions or powers to either the Commissioner for Integrity appointed under section 18 of the Law Enforcement Conduct Commission Act 2016 (NSW), or an Assistant Commissioner appointed under section 20 of that Act, or a member of the staff of the Commission within the meaning of section 21 of that Act who is at executive level.

 

29.   Item 8 of the table provides that the chief officer of the Independent Broad-based Anti-Corruption Commission of Victoria may delegate his or her functions or powers to either a Deputy Commissioner of the Commission appointed under section 23 of the Independent Broad-based Anti-corruption Commission Act 2011 (Vic), the Chief Executive Officer of the Commission appointed under section 33 of that Act, or a sworn IBAC officer within the meaning of section 3 of that Act who is at executive level.

 

30.   Item 9 of the table provides that the chief officer of the Crime and Corruption Commission of Queensland may delegate his or her functions to a senior executive officer within the meaning of paragraphs 245(3)(b) and 245(3)(a) of the Crime and Corruption Act 2001 (Qld).

 

31.   Item 10 of the table provides that the chief officer of the Independent Commissioner Against Corruption (SA) may delegate his or her functions to either the Deputy Commissioner within the meaning of the Independent Commissioner Against Corruption Act 2012 (SA) or a member of staff of the Independent Commissioner Against Corruption within the meaning of that Act who is at executive level.

 

32.   Item 11 of the table provides that the chief officer of the Corruption and Crime Commission (WA) may delegate his or her functions to an officer of the Commission within the meaning of the Corruption, Crime and Misconduct Act 2003 (WA) other than a person engaged under section 182 of that Act, who is at executive level.

 



 

Item 9             At the end of section 317ZR

 

33.   This item adds subsection 317ZR(6) which provides that, for the purposes of section 317ZR, a person is at executive level, in relation to an interception agency of Western Australia, if the person occupies an office or position at an equivalent level to that of a senior executive officer (within the meaning of the Public Sector Management Act 1994 (WA)).