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Royal Commission into the New South Wales Police Service (Access to Information) Bill 1994



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House: Senate

Portfolio: Justice

Commencement: Royal Assent

Purpose

To amend the Financial Transactions Reports Act 1988 (Cwlth) and the Telecommunications (Interception) Act 1979 (Cwlth) to provide access to the Royal Commission into the New South Wales Police Service to information held by certain Commonwealth and other agencies.

Background

The Royal Commission into the New South Wales Police Service

From 1992 to 1993, the New South Wales Independent Commission Against Corruption (ICAC) held an inquiry into the relationships between police and criminals. However, New South Wales Independent, John Hatton, and others considered that the ICAC did not get to the bottom of police corruption and that serving police and others would be more willing to testify before a Royal Commission than before the ICAC. In May 1994, Mr Hatton spoke in the New South Wales Parliament about alleged police involvement in criminal activity, surveillance by the Police Service on three former ALP Ministers, and other matters. 1

Although the New South Wales Government wanted these allegations referred to the ICAC, it agreed to a motion of the New South Wales Parliament to establish a Royal Commission.

On 13 May 1994, Supreme Court Justice James Wood was appointed to head the Royal Commission into the New South Wales Police Service and report into the nature and extent of police corruption, the efficacy of the Service's internal informers policy, the Service's promotion system, the activities of its Professional Responsibility and Internal Affairs Branches, its impartiality in investigating prosecutions, and other associated matters relating to criminal activity, neglect or violation of duty. 2 The Royal Commission is due to report on 30 December 1996.

In August 1994, it was reported that the Royal Commissioner had asked the New South Wales Government for increased powers. 3 On 22 September 1994, the Royal Commission (Police Service) Bill 1994 was introduced into the New South Wales Parliament and is currently before the Legislative Council. The Bill confers additional powers on the Royal Commission which are similar to those of the ICAC. 4

Although it was reported that the New South Wales Premier had asked the Commonwealth to empower the Royal Commission to conduct telephone intercepts, this power has not been included in the Royal Commission into the New South Wales Police Service (Access to Information) Bill (the Bill).

During the Second Reading Speech for the Royal Commission (Police Service) Bill in the New South Wales Parliament, the Minister for Police stated that the Prime Minister has indicated that Commonwealth authorities like the National Crime Authority and the Australian Federal Police will 'offer their assistance and cooperation to the royal commission.' 5 It has been reported that both the National Crime Authority and the Australian Federal Police have telephone-tap material relating to alleged police corruption. 6

Financial Transactions Reports

The Financial Transactions Reports Act 1988 was introduced to 'assist in the deterrence and detection of tax evasion and criminal activity, including offences against Australia's corporate laws, money laundering from drug trafficking and organised crime'. 7

Certain financial transactions must be reported to AUSTRAC, a statutory body established under the Financial Transactions Reports Act 1988. AUSTRAC then disseminates this information to the Australian Taxation Office and law enforcement agencies. At present, the law enforcement agencies with access to AUSTRAC information are the Australian Federal Police, the National Crime Authority, the Australian Customs Service, the Australian Securities Commission, State and Territory police services, the New South Wales Crime Commission, the ICAC, and the Queensland Criminal Justice Commission. 8

Telecommunications Interception

The Commonwealth is empowered by section 51(v) of the Constitution to make laws with respect to postal, telegraphic, telephonic and similar services.

The Commonwealth first exercised its powers to make laws regulating the interception of telecommunications when it enacted the Telephonic Communications (Interception) Act 1960. The Act provided that it was an offence to intercept telephonic communications except where:

* the interception was carried out by officers of the Postmaster-General's Department, either for reasons connected with the technical operation of the telephone system or to trace calls which contravened the Post and Telegraph Act 1901 (for example, nuisance calls);

* the interception was carried out under a warrant issued either to ASIO by the Attorney-General for national security reasons or, in emergencies and for a short term, by the Director of Security.

Interception for general law enforcement purposes was not permitted.

The purposes for which telephone interception could be authorised were expanded under the Telecommunications (Interception) Act 1979 9 from national security purposes to include narcotics offences punishable under the Customs Act 1901.

Section 7 of the Telecommunications (Interception) Act 1979 prohibits the interception of telecommunications, subject to exceptions. The most important exception relates to interceptions carried out under a warrant.

Warrant applications for law enforcement purposes can only be made by the Australian Federal Police, the National Crime Authority or an 'eligible authority' of a State or the Northern Territory in relation to which a declaration under section 34 of the Act is in force. 10 A declaration comes into force if preconditions set out in section 35 are complied with and the Minister makes a declaration on the request of a State Premier. Under the Telecommunications (Interception) Act 1979, investigation of class 1 and class 2 offences may be conducted under a warrant (see endnote 18).

Section 5 of the Telecommunications (Interception) Act 1979 defines eligible authorities as the police forces of each of the States and the Northern Territory, the Independent Commission Against Corruption, the New South Wales Crime Commission and the Queensland Criminal Justice Commission. As at 30 June 1993, declarations were in force under section 34 of the Telecommunications (Interception) Act 1979 for the Police Force of Victoria, the New South Wales Crime Commission, the New South Wales Police Force, the ICAC and the Police Force of South Australia. 11

Only 'eligible Judges' may issue warrants authorising interceptions for law enforcement purposes. Warrants for national security purposes are issued to ASIO by the Attorney-General.

Since the Telecommunications (Interception) Act 1979 was first introduced, amendments have progressively extended the scope of exceptions to the general prohibition on interception.

In the mid-1980s, two major inquiries were conducted into telecommunications interception. These were the 1986 Royal Commission of Inquiry into Alleged Telephone Interceptions and the 1986 Joint Select Committee on Telecommunications Interception.

Following these inquiries, amendments to the Telecommunications (Interception) Act 1979 were passed in 1987 which expanded the scope of interception provisions. These amendments extended the use of interceptions under warrant for law enforcement purposes to certain serious offences such as murder, kidnapping and serious fraud. The Act created a Telecommunications Interception Division within the Australian Federal Police to execute interception warrants on behalf of State and Territory police services and other declared agencies. It also created a requirement that action to facilitate an interception must be carried out by an employee of a carrier - generally Telecom. Both of these measures were introduced to strengthen privacy protection and ensure Federal control over interceptions. Reporting and record keeping requirements were also introduced.

In 1989, a review of the Telecommunications (Interception) Act 1979 was commenced by the Attorney-General's Department and a report was issued. 12

In 1993, the Telecommunications (Interception) Act 1979 was further amended. The amendments included provisions which allow an AFP officer to intercept a telecommunication without a warrant in certain circumstances. In addition, the Queensland Criminal Justice Commission was added to the list of eligible authorities which may be entitled to apply for an interception warrant.

Telecommunications Interceptions, Privacy and Law Enforcement

The issue of telecommunications interceptions involves a number of competing interests. When introducing the Telephonic Communications (Interception) Act 1960, the then Attorney-General commented:

[E]avesdropping is abhorrent to us as a people. Not one of us, I am sure, would fail to recoil from the thought that our privacy could lightly be invaded. . . . all of us, I think, dislike the feeling that we may be overheard and that what we wish to say may reach ears for which we did not intend the expression of our thoughts. Much of our normal life depends on the confidence we can repose in those to whom we lay bare our sentiments and opinions, with whom we wish to communicate. 13

Concerns identified by bodies such as the Australian Law Reform Commission and the Joint Select Committee on Telecommunications Interception include: invasions of privacy, restrictions on freedom of speech, violation of the integrity of telecommunications systems, misuse of information, further disclosure of lawfully collected information and ever-increasing extensions of interception powers. It has also been argued that law enforcement and security bodies have access to means of collecting intelligence other than through telephone intercepts.

Remarking in 1983 on proposals then mooted to extend interception powers, the Australian Law Reform Commission presciently acknowledged criticism that ' . . there will be ever increasing demands to extend [intercept powers] further to other particular problem areas or even for law enforcement purposes generally. Looked at historically, there may well be valid justification for that apprehension.' 14

Law enforcement agencies and bodies like the Royal Commission into Alleged Telephone Interceptions (the Stewart Royal Commission) have argued for greater interception powers. The Stewart Royal Commission regarded telephone intercepts as 'an essential and cost effective means of combating organised and drug related crime.' 15

The conclusion of the Joint Select Committee on Telecommunications Interception was that there was a need to:

'draw the line' in achieving a satisfactory balance between civil liberties and privacy rights on one hand, and the compelling need on the other hand to provide law enforcement agencies with sufficient information to fulfil their roles and functions. 16

According to the Joint Select Committee on Telecommunications Interception that balance should be achieved within a framework which contained stringently defined safeguards and which restricted to a minimum the number of agencies legally empowered to conduct interceptions. 17

Main Provisions

Amendments to the Financial Transactions Reports Act 1988

Clause 1 adds to the definitions section of the Financial Transaction Reports Act 1988, the Royal Commission into the New South Wales Police Service.

Clauses 2 and 3 amend section 27 of the Financial Transaction Reports Act 1988. Section 27 relates to access to financial transactions reports (FTR) information. The amendments will allow the Royal Commission, the person constituting the Royal Commission and a staff member of the Royal Commission to access FTR information held by AUSTRAC.

Amendments to the Telecommunications (Interception) Act 1979

Clauses 4-11 amend subsection 5(1) of the Telecommunications (Interception) Act 1979 to include certain definitions relating to the Royal Commission into the New South Wales Police Service and its work.

In particular:

* Clause 6 amends the definition of 'eligible authority' to include the Royal Commission into the New South Wales Police Service. The amendment enables lawfully obtained information to be communicated to the Royal Commission under section 68 of the Telecommunications (Interception) Act 1979.

* Clause 7 amends the definition of 'officer' to include the Royal Commissioner and his staff. As a result the Royal Commissioner and his staff will be able to communicate, use or record lawfully obtained information for a permitted purpose of the Royal Commission.

* Clause 8 amends the definition of a 'prescribed investigation' to include an investigation being conducted by an eligible authority of a State which is not a declared agency. The amendment ensures that the definition of a 'prescribed investigation' applies to an eligible authority, irrespective of whether it has been declared under the Act. As such, it will apply to the Royal Commission.

* Clause 9 provides that investigations of the Royal Commission into the New South Wales Police Service under the Letters Patent establishing it come within the ambit of a 'prescribed investigation'.

* Clause 10 provides that the definition of a 'relevant offence' applies to an eligible authority of a State which is not a declared agency under the Telecommunications (Interception) Act 1979.

* Clause 11 amends the definition of 'relevant offence' to mean, in the case of the Royal Commission into the New South Wales Police Service, 'a prescribed offence that is an offence against the law of New South Wales and to which a prescribed investigation relates'. A prescribed offence is defined in subsection 5(1) of the Telecommunications (Interception) Act 1979 and includes a serious offence 18 , an offence punishable by life imprisonment or for a period of at least three years or certain ancillary offences. As a result, the chief officer of an agency may communicate lawfully contained information which relates to or appears to relate to a 'relevant offence' to the Royal Commissioner.

Clauses 12-18 amend section 5B of the Telecommunications (Interception) Act 1979 to provide that an exempt proceeding includes a proceeding of the Royal Commission into the New South Wales Police Service. The effect of clause 18 is that information lawfully obtained under the Telecommunications (Interception) Act 1979 can be given in evidence in proceedings before the Royal Commission.

Clauses 21-23 amend section 68 of the Telecommunications (Interception) Act 1979. At present paragraph 68(b) allows the chief officer of an agency to communicate information that relates to or appears to relate to ' the commission of an offence in relation to another agency.'

The amendments will permit the chief officer of an agency to communicate lawfully obtained information to the Royal Commissioner if the information relates or appears to relate to:

* an act or omission by a police officer that may give rise to an investigation by the Royal Commission; or

* misbehaviour or improper behaviour of an officer of a State that may give rise to an investigation by the Royal Commission.

The Explanatory Memorandum states that this amendment enables information that falls within the Royal Commission's terms of reference but which does not amount to a criminal offence to be communicated to the Royal Commissioner.

In summary, among other things the Bill enables the Royal Commission to access and use lawfully obtained information intercepted by other agencies that relates or appears to relate to:

* certain offences against New South Wales law to which its investigation relates;

* acts or omissions by police officers or misbehaviour or improper conduct by an officer of a State that may result in an investigation by the Royal Commission.

The Bill's provisions should give the Royal Commission access to a considerable amount and variety of information.

The Bill does not give the Royal Commission the power to intercept telecommunications nor does it give the Royal Commission the power to apply for telecommunications interception warrants.

Remarks

Some concern has been reportedly expressed by the Royal Commissioner, James Wood QC and by the New South Wales Government that the Commonwealth Government has not given the Royal Commission power to apply for intercept warrants. 19

A number of questions arise here. Should the Royal Commission have the power to conduct its own telecommunications intercepts? At present, law enforcement interceptions in Australia are activated by one central agency. The Australian Federal Police is responsible for activating a switch from its Telecommunications Interception Division which enables an intercepted signal to be received directly by the relevant law enforcement agency. Before doing so, the AFP must be satisfied that the interception is in accordance with the relevant warrant. The AFP may disconnect the interception.

The Joint Select Committee on Telecommunications Interception examined the need for a decentralised system of telecommunications interception in Australia. It concluded that to protect security and privacy, a minimum number of agencies should be given control of interceptions. There appears to be no reason why the Royal Commission should be given power not available to other eligible authorities.

Should the Royal Commission be able to apply for intercept warrants? It appears that no Royal Commission has been given such powers. Against the granting of such powers it can be argued that such powers would infringe civil liberties and privacy, that it would constitute yet another precedent for the ever-expanding scope of intercept powers, that the Royal Commission has access to an extensive range of information (not merely confined to information about criminal offences) lawfully collected by other agencies and that the Commission itself will have expansive powers to gather information by other means.

In favour of the granting of such powers, it could be argued that the very nature of the inquiries being made by the Royal Commission and the nature of declared 'eligible authorities' under the Telecommunications (Interception) Act 1979 means that cooperation from some of those agencies may not be forthcoming. A policy decision appears to have been made by the Commonwealth Government not to make a declaration under section 34 of the Act in respect of the Royal Commission. However, it appears that, should this policy decision be reversed, it would possible if the conditions of section 35 are satisfied, and a is request made by the New South Wales Premier, that that the Minister could declare the Royal Commission to be an agency under section 34 of the Telecommunications (Interception) Act 1979. The Royal Commission would then have the power to apply for intercept warrants.

Some concerns have been expressed that 'eligible authorities' are unduly limited by the Telecommunications (Interception) Act 1979 in regard to the type of offences that are the subject of a warrant. However, it must be remembered that the nature of offences that may be the subject of interception warrants has considerably expanded since the passage of the Act in 1979. Interception warrants may be granted in respect of a large number of serious and well-defined offences. During its inquiry into telecommunications interceptions, the Joint Select Committee on Telecommunications Interception remarked that 'telecommunications interception is justified only in very limited and closely defined circumstances.' 20 Expansion of the number of offences in respect of which warrants may be granted does not appear justified.

Endnotes

1 Morris, L 'Premier acts to limit the damage', Sydney Morning Herald, 14 May 1994.

2 Letters Patent, 13 May 1994.

3 Coulton, M 'Wood seeks increased powers', Sydney Morning Herald, 10 August 1994.

4 Among the powers conferred by the Bill are:

* power to require a public authority or official to produce a statement of information to the Royal Commission;

* power to enter premises occupied or used by a public authority or official to inspect the premises or documents when investigating criminal offences;

* power to issue search and arrest warrants for the purpose of investigating criminal offences;

* the grant to legal practitioners assisting the Royal Commission, Royal Commission staff and persons appearing before the Royal Commission, of the same protections from liability as conferred on similar people appearing before ICAC;

* power conferred on the Royal Commissioner to make arrangements to protect Royal Commission witnesses (New South Wales. Legislative Assembly. Parliamentary Debates, 22 September 1994, pp 3628-9).

5 New South Wales. Legislative Assembly, op.cit; p 3629.

6 Skehan, C 'NCA asks what to tell police inquiry', Sydney Morning Herald, 18 May 1994.

7 AUSTRAC, Annual Report 1993-94, p 1.

8 Ibid.

9 This Act repealed and replaced the Telephonic Communications (Interception) Act 1960.

10 An eligible authority for which a declaration is in force is called an 'agency' (section 34).

11 Telecommunications (Interception) Act 1979. Report for the Year Ending 30 June 1993, AGPS, Canberra, 1993.

12 Attorney-General's Department, Review of the Telecommunications (Interception) Act 1979, December 1991.

13 Quoted in Australian Law Reform Commission, Privacy . Volume 1. Background, AGPS, Canberra, 1983, p 351.

14 Ibid , p 357.

15 Royal Commission of Inquiry into Alleged Telephone Interceptions, Report -Volume One, 30 April 1986, p 326.

16 Joint Select Committee on Telecommunications Interception, Report, Parliamentary Paper No. 306, p 119.

17 Ibid, pp 169, 180.

18 A 'serious offence' is also defined in subsection 5(1) of the Telecommunications (Interception) Act 1979 as a class 1 or class 2 offence. Class 1 offences include murder, kidnapping, a narcotics offence or an ancillary offence.

A class 1 offence includes an offence in relation to which the National Crime Authority is conducting a 'special investigation' under the National Crime Authority Act 1984.

A 'special investigation' is an investigation performed by the National Crime Authority in the performance of its special functions (section 4, National Crime Authority Act 1984). The 'special functions' of the Authority are set out in subsection 11(2) of the National Crime Authority Act 1984 and relate to references given to the Authority by the Commonwealth or the States in relation to criminal activities.

Class 2 offences include an offence punishable by life imprisonment or for a period of seven years where the offence involves loss of life or serious risk of loss of life, serious personal injury or risk of serious personal injury, serious damage to property in circumstances which endanger human life, serious fraud or serious loss to the revenue of a State.

19 Coulton, op.cit.

20 Joint Select Committee on Telecommunications Interception, op.cit; p 181.

Jennifer Norberry (06) 277 2476

Bills Digest Service 31 October 1994

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 1994

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Published by the Department of the Parliamentary Library, 1994.