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Telecommunications (Interception) Amendment Bill 1993



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House: House of Representatives

Portfolio: Attorney General

Commencement :On Royal Assent (except where specifically noted in Digest. All amendments are to come into effect by 1 March 1993)

Purpose

The Bill amends the Telecommunications (Interception) Act 1979 (the Principal Act) by:

* Introducing a new method by which warrants issued to State police forces and agencies may be executed. The proposal introduces a computer controlled system (the TIRAC system) which allows a State agency to receive an intercepted signal without the signal being routed through Canberra;

* Introducing a centralised Register of Warrants showing the particulars of all warrants issued under the Act;

* Allowing interception by Federal and State police forces in certain emergency situations;

* Allowing State agencies to obtain warrants allowing interception of services outside the States boundaries in certain circumstances.

Background

The Commonwealth first exercised its power to make laws regulating the interception of telecommunications and thus the privacy of telecommunications, by enacting the Telephonic Communications (Interception) Act 1960 (the 1960 Act). Under the 1960 Act, it was an offence to intercept telephonic communications except in two circumstances-

- where interception was effected by officers of the Postmaster-General's Department, either for reasons connected with the technical operation of the telephone system or to trace a telephone call relating to a contravention of the Post and Telegraph Act 1901 (e.g. nuisance calls);and

- where interception was authorised by a warrant issued under the 1960 Act. At this time, 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 of Security.

Thus, under the 1960 Act, interception for general law enforcement purposes was not permitted. 1

In 1979, the purposes for which telephone interception might be authorised under warrant was expanded by the passing of the Telecommunications (Interception) Act 1979, to include narcotics offences such as drug importation, punishable under the Customs Act 1901. The 1979 Act also extended the scope of protection against interception to include other telecommunications services, such as data transfer systems. 2

Following a number of reports, in particular the Report of the Royal Commission of Inquiry into Alleged Telephone Interceptions (1986), and the Report of the Joint Select Committee on Telecommunications

Telecommunications (Interception) Amendment Bill 1993

Interception (1986), which commented on the use of interception for law enforcement purposes, the Telecommunications (Interception) Amendment Act 1987 (the 1987 Act) was passed. This Act extended the use of interceptions under warrant for law enforcement purposes to certain other serious offences such as murder and kidnapping and serious fraud. The 1987 Act also provided for the creation of a centralised agency, the Telecommunications Interception Division (TID), within the Australian Federal Police (AFP), to execute interception warrants on behalf of the State and Territory police forces and other declared agencies. It also made it a requirement that the action to facilitate an interception must be taken by an employee of a carrier, generally Telecom. Both of these measures were introduced to strengthen privacy protection and to ensure Federal control over interceptions. 3

Further, as a result of the amending Act, interceptions made under warrant became subject to detailed recording and reporting obligations including periodic auditing by Commonwealth and State Ombudsmen. The Minister and the State Ministers were also required to furnish an annual report on the operation of the Act.

In 1989, the Attorney-General's Department reviewed the Principal Act in response to significant changes in telecommunications technology which had occurred since the Act was introduced. Submissions were received by the Department from State and Federal law enforcement agencies, Telecom, the New South Wales Council for Civil Liberties, State and Federal Ombudsmen and other inspecting agencies. A discussion paper prepared by the Department was made available to the public in December 1991. The review was completed and recommendations submitted to the Attorney-General in 1992. 4

In the Discussion Paper, the Review Team recommended that:

(a) Existing restrictions on 'participant monitoring' - the recording of a communication by one of the parties to a communication without the other party's knowledge - should be removed.

(b) 'Interception of a communication' should be redefined to cover the 'listening to, or recording, of messages passing from one person to another over a telecommunications system without the knowledge of either party'; and 'messages should be defined to include voice, fax or data communications.

(c) In relation to the execution of warrants, the Act should be amended to allow agencies to opt for dedicated computer links (TIRAC System) with the Telecommunications Interception Division instead of the current requirement for interceptions to be routed through the TID.

(d) The Act should be amended to-

* make clear that an agency may communicate intercepted information to the Australian Bureau of Criminal Intelligence (ABCI) so that the ABCI may provide criminal intelligence to the relevant law enforcement agencies;

* require the ABCI to review the information annually and destroy that which is no longer relevant to the continuing investigation of which it has notice;and

* to apply record-keeping and inspection requirements of Part VIII of the Act to the ABCI.

(e) Intercepted information should be able to be produced for the purpose of an exempt proceeding, as defined in the Act, pursuant to a subpoena to produce documents and the definition of an exempt proceeding should be widened to include a hearing conducted by the NSW Independent Commission Against Corruption.

(f) A number of minor amendments should be made to the administration of the Act.

(g) The recording and reporting obligations should continue and be supplemented; and guidelines should be developed to give effect to the recommendation of the Senate Standing Committee on Legal and Constitutional Affairs in its report on annual reports on the operation of Acts. 5

(h) The inspection function should remain vested in the Commonwealth Ombudsman. 6

In this Bill, the Government has proposed those amendments to the Act which it believes are desirable following its consideration of the review. Few of the review teams substantive recommendations have been followed. The Government has stated that it is it's intention in this Bill to address some of the current practical problems with the Act without disturbing the Acts present balance between privacy interests and law enforcement. 7

It is estimated that the adoption of the amendments proposed will reduce the overall cost of interception by $2 million. 8

The Balance between Privacy and Law Enforcement.

As indicated above, the Government has stated that in proposing the amendments, it has sought to preserve a balance in the Act between privacy and law enforcement interests. In it's 1983 report on Privacy, the Australian Law Reform Commission (ALRC) identified the theoretical basis of privacy as follows-

"an individual's claim to personal autonomy involves a claim to have some control over the way in which he interacts with others. This implies the ability to exclude others from conversations or communications into which he enters and the ability to exclude others from conversations into which he enters and the ability to prevent....other people spying on his activities." 9

It is generally accepted, however, that an individual's right to privacy must be balanced against societies interests as a whole. In relation to this balance the ALRC made the following comment-

"...in some instances, the social benefits that flow from police use of interception and monitoring techniques (in the form of more effective and efficient law enforcement) outweigh the cost, in privacy terms, to individuals of the use of those techniques." 10

Main Provisions

Arrangements for Executing Warrants.

As the Act stands, the responsibility for executing warrants issued to a law enforcement agency, State or Federal, lies with the TID of the AFP. This regime requires all intercepted signals to be routed from the exchange identified in the warrant, wherever it is located in Australia, to the TIDs facilities in Canberra via a leased line where the signals are recorded. The signal is then re routed back down leased line to the monitoring centre of the law enforcement agency which applied for the warrant. The recording and listening by the agency is deemed not to be an interception by virtue of sub-section 6(3) and (4) of the Act. This arrangement was criticised by all agencies in submissions to the review team as being impractical and costly. The main problems which were identified in the review were: delay, unfamiliarity of AFP members with individual investigations, risks to security, technical difficulties and cost.

The Government proposes to overcome these problems by adopting the submission put to the review team by the Victorian police. The new system involves a computer controlled cross point switcher known as the Telecommunications Interception Remote Authority Connection (TIRAC) system whereby the AFP activates a switch from the TID of the AFP in Canberra after being satisfied that the interception is in accordance with the relevant warrant. This allows the intercepted signal to be received direct by the law enforcement agency instead of being routed through the TID in Canberra. Thus, the system retains the requirement that an interception may only be achieved as a result of AFP action, ensuring Federal control over interception. Further, the AFP retains the ability to disconnect an interception. The advantages of the system are increased signal quality and reliability, security and reduced cost.

The proposed amendments which facilitate introduction of the TIRAC system are: clause 5 which repeals sub-sections 6(3) and (4); clause 12 which amends the functions of the TID to include taking action to enable warrants issued to agencies other than the AFP to be executed; clause 14 which amends section 47 of the Act to require that action to enable a warrant to be executed must be taken by an AFP officer or staff member; clause 17 which provides that a warrant issued to an agency other than the AFP pursuant to sections 45 or 46 may only be exercised by an officer or staff member of the agency who applied for the warrant. The AFP continues to execute section 48 warrants which authorise entry on to premises for the purpose of interception; and clause 23 which authorises an employee of a carrier to pass on information in relation to serious offences acquired in the performance of his duties, to a State agency as well as the AFP.

The proposed amendments will come into effect on Proclamation, however, if the amendments have not been proclaimed by 1 March 1994, they will commence on that date.

Register of Warrants

In order to maintain Federal control over interceptions, Clause 27 inserts a new section 81A and section 81B into the Act. The proposed section 81A requires the Commissioner of the AFP to maintain a Register of Warrants showing the particulars of all warrants issued under the Act. The particulars include: the date of the warrant, the agency to whom the warrant was issued, the telecommunications service to which the warrant relates, the name of the person who is likely to use the service and the offences of which the Federal Court Judge issuing the warrant was satisfied. The proposed section 81B requires the Commissioner to deliver the Register to the Minister for inspection every 3 months.

Interception without a Warrant

Clause 10, in part, amends section 7 of the Act which prohibits interception, to allow an officer of the AFP or State police forces to intercept a telecommunication without a warrant in two circumstances:

(a) where the police officer is a party to a conversation in circumstances where it is reasonable to suspect that the other party to the conversation is involved in the actual or threatened loss of life or infliction of serious injury (to him/herself or another person) or serious damage to property and the urgency of the situation makes it impracticable to make an application for a warrant (ie sieges); and

(b) in similar circumstances where the police officer is not a party to the conversation, where the permission of the person to whom the telecommunication is directed has been obtained (ie kidnap and extortion demand situations). The urgency of the matter is not a necessary element in this case.

Warrants for Interception of Services Outside the Boundaries of a State.

Sub-section 39(3) of the Act currently prohibits the issuing of a warrant in relation to a telecommunications service which is outside the State of the particular agency seeking the warrant. This restriction has created a loophole in the Act which may be exploited by those involved in criminal activities, ie by moving from state to state. Clause 13 seeks to close this loophole by removing the territorial limitation. This would allow a State agency to obtain a warrant for interception of a service outside its State in situations where a nexus between the investigation of an offence for which the State agency has responsibility and the outside service is established.

Other Amendments.

(a) inclusion of computer related offences in Part VIA of the Crimes Act 1914 in the category of offences for which a warrant may be sought (clause 3)

(b) inclusion of the Queensland Criminal Justice Commission in the list of State agencies which may be entitled to apply for warrants (clause 3).

(c) delegation of the power to revoke warrants to ensure that warrant is revoked as soon as possible after it is decided that the interception is no longer required (clauses 18 and 19).

(d) introduction of a requirement to report on the total cost of interception during the reporting year (clauses 30 and 31).

(e) introduction of new reporting requirements into the Act (clause 32).

Endnotes

1. Telecommunications (Interception) Act 1979, Report for the year ending 30 June 1992, p. 3.

2. Ibid.

3. Attorney-General's Department, Review of Telecommunications (Interception) Act 1979, December 1991, p. 9.

4. Telecommunications (Interception) Act 1979, Report for the year ending 30 June 1992, pp. 10-11.

5. Annual Reports referred to the Committee for the period 1 January - 30 June 1990 (tabled on 21 December 1990)

6. Attorney-General's Department, Review of Telecommunications (Interception) Act 1979, December 1991, p. (iv)-(v).

7. Second Reading Speech, Telecommunications (Interception) Amendment Bill 1993, p. 1.

8. Ibid., at p. 4.

9. Law Reform Commission, Australia, Report No.22, Privacy (1983)

10. ibid at para 1142

Bernadette McMahon (06 2772477)

Bills Digest Service 24 September 1993

Parliamentary Research Service

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Commonwealth of Australia 1993.

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Published by the Department of the Parliamentary Library, 1993.