Bills Digest No. 3   1997-98 Telecommunications (Interception) and Listening Device Amendment Bill 1997


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WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

CONTENTS

Passage History

Telecommunications (Interception) and Listening Device Amendment Bill 1997

Date Introduced: 14 May 1997
House: House of Representatives
Portfolio: Attorney-General
Commencement: All provisions commence on the day on which the Act receives the Royal Assent except those relating certain members of the Administrative Appeals Tribunal issuing warrants. Those provisions commence on the earlier of a date to be fixed by proclamation and six months after Royal Assent.

Purpose

To:

  • allow the New South Wales Police Integrity Commission (PIC) to obtain warrants (referred to as interception warrants) authorising it to intercept telecommunications
  • permit the Australian Federal Police (AFP) to use intercepted information when making decisions whether to appoint or re-appoint a person as a police officer
  • allow intercepted information to be used for additional purposes, such as in bail applications and coronial inquests
  • extend the range of persons who can issue interceptions warrants and warrants authorising the use of listening devices to certain members of the Administrative Appeals Tribunal (AAT)

Background

Who Can Issue a Telecommunications Interception Warrant?

The Telecommunications (Interception) Act 1979 (TI Act) makes it an offence for a person to intercept a communication passing over a telecommunications system.(1) However, there are a number of exclusions from the prohibition including:

the interception of a communication under a warrant.(2)

Warrants can only be issued to obtain information in connection with the investigation of certain offences.

Divisions 3 and 4 of Part VI deal with applications for and issue of interception warrants, respectively, by Commonwealth agencies (which includes the AFP).

Applications for warrants must be made to an 'eligible Judge'.(3) An eligible Judge is a Federal Court Judge who has consented to be nominated by the Minister as an eligible Judge and has been so nominated by the Minister.(4)

The identity of eligible Judges is not disclosed to the public, however, it is known that in May 1994, 30 out of the 35 Judges of the Federal Court (excluding the Chief Justice) were eligible judges.(5)

The separation of the exercise of judicial power from the exercise of executive and legislative power under the Commonwealth Constitution requires that those governmental functions which are administrative functions must not be entrusted to the Federal courts.(6) The qualification to this rule is that it does not prevent a judge, in his or her personal capacity, being appointed to an office which involves the performance of administrative functions provided the function is not incompatible with their status and independence.(7) This qualification is referred to as the persona designata rule.

The question as to whether it was constitutionally valid for the TI Act to authorise judges of the Federal Court to issue interception warrants was raised in Grollo v. Commissioner of Australian Federal Police and Others (1995)184 CLR 348.That case involved the investigation, by the AFP,of certain criminal offences by Bruno Grollo.In June 1993 the AFP obtained a warrant authorising the interception of a mobile phone service.Conversations involving Grollo were recorded and in August 1993, Grollo was charged with a number of offence against the Crimes Act 1903 (Cth).Grollo commenced proceedings claiming a declaration of invalidity of the provisions of the TI Act which deal with application for and issue of interception warrants on the basis that those provisions were beyond the power of the Commonwealth Parliament because they purported to confer power on judges, the exercise of which was incompatible with judicial functions.

The High Court followed an earlier decision of Love v. Attorney General (NSW)(8) in holding that the issue of an interception warrant was an administrative not a judicial power.It was further held that the power to issue warrants was conferred on judges in their personal capacity, i.e. as persona designata.The question was then whether exercise of the power to issue interception warrants was incompatible with the judges' judicial functions.It was held (5:1) that the exercise of that power was not incompatible with the exercise of judicial functions.In his dissenting judgment, McHugh J commented:

In my opinion, the functions undertaken by Federal Court judges acting as persona designata in accordance with the Act are of such a nature and are exercised in such a manner that public confidence in the ability of the judges to perform their judicial functions in an independent and impartial manner is likely to be jeopardised.That being so, the power to authorise the issue of intercept warrants is incompatible with the exercise of the functions of a judge of a federal court.

Nonetheless, by a clear majority the High Court has declared that issue of warrants is not incompatible with the exercise of judicial functions and that the relevant provisions of the TI Act are constitutional.

Eligible judges have decided that they should no longer perform the function of issuing interception warrants.(9)

There have been two High Court decisions since the decision in Grollo which have considered the exercise of administrative functions by judges.In Wilson v. Minister for Aboriginal and Torres Strait Islander Affairs the plaintiffs sought a declaration that the nomination of Justice Jane Matthews to prepare a report under the Aboriginal and Torres Strait Islander Heritage protection Act 1984 was incompatible with her commission as a Judge of the Federal Court and/or with the proper performance of her judicial functions as a Judge of that Court.The declaration was granted.The majority commented:

The category of incompatibility that arises for consideration is 'the performance of non-judicial functions of such a nature that public confidence in the integrity of the judiciary as an institution or in the capacity of the individual judge to perform his or her judicial functions with integrity is diminished'...

They continued:

The function of a reporter under s 10 is not performed by way of an independent review of an exercise of the Minister's power.It is performed as an integral part of the process of the Minister's exercise of power.The performance of such a function by a judge places the judge firmly in the echelons of administration, liable to removal by the Minister before the report is made and shorn of the usual judicial protections, in a position equivalent to that of a ministerial adviser...

In Kable v. Director of Public Prosecutions (NSW) (1996)138 ALR 577 the High Court was considering the Community Protection Act 1994 (NSW) which authorised the Supreme Court of New South Wales to make an order for preventative detention of Gregory Kable if satisfied that he was more likely than not to commit a serious act of violence and it was appropriate for the protection of the community that he be held in custody.The legislation did not authorise the making of an order in respect of any other person.It was held (4:2) that the legislation was invalid.It was found that:

  • the powers conferred were of such an extreme nature and quality as to render them incompatible with the exercise by the same judicial institution of the State of the judicial power of the Commonwealth.
  • the power to make an order depriving an individual of his liberty on the basis that he was more likely than not to breach a law was a process constituting the antithesis of the judicial process.
  • the Act attempted to dress up its process as proceedings involving a judicial process and in doing so made a mockery of the judicial process.The result would be a weakening of the confidence in the judicial institutions which comprised the judicial system brought into existence by Chapter III of the Constitution.

The decision in Kable is less relevant in the context of this Bill because it dealt with reposing a power in a court rather than in a judge as a personal designata.It is not clear from the decision in Wilson whether the High Court's approach since Grollo has been towards even greater protection of the integrity of judicial power.However, it is clear that neither decision could be said to detract from the decision in Grollo.

Police Corruption in New South Wales

In May 1994,the Hon Justice James Wood was authorised and required to investigate, among other things, 'the existence or otherwise of systemic or entrenched corruption within the New South Wales Police Service'.(10)

The Commissioner specifically considered interception of telecommunications and made a number of comments:(11)

However, even accepting that policy [of balancing law enforcement and the right to privacy], it is the Commission's view that the types of offences stipulated as attracting the interception power do not achieve the correct balance.Of particular concern is the fact that a significant number of offences which are defined as serious offences at State level, do not qualify as serious offences for the purpose of the TI Act...

The Commission is also concerned that the narrowness of the TI Act stifles effective law enforcement by preventing the use of intercept product in proceedings which, though they may not constitute criminal proceedings, are nevertheless integrally related.The Commission has in mind bail applications, proceeding for contempt, proceeding in Coroners Courts, proceedings for injunctive or declaratory relief arising out of an investigation by a relevant agency and proceedings for the recovery of proceeds of crime under the Drugs Misuse (Civil Proceedings) Act 1990.Each of these should, in the view of the Commission, be included within the definition of exempt proceedings' and recommends reform accordingly...

In any further review of the TI Act, specific consideration should in the Commission's view, also be given to devolution of Commonwealth responsibility to the States, at least in relation to the selection of agencies which might use a TI power, and the offences for which it should be available.This is a recognition of the inappropriateness of the Commonwealth being involved in the enforcement of laws at a State level...

The Commission recommended a systematic and comprehensive review of legislation and procedures regulating the use of telephone intercepts be conducted by the Commonwealth.

The New South Wales Parliament has established the PIC to continue the work of the Wood Royal Commission into the New South Wales Police Service.The principal functions of the Commission are:(12)

  • prevent serious police misconduct and other police misconduct,
  • detect or investigate, or manage other agencies in the detection or investigation of, serious police misconduct,
  • detect or investigate or oversee other agencies in the detection or investigation of, other police misconduct, as it thinks fit,
  • receive and assess all matters not completed by the Police Royal Commission, to treat any investigations or assessments of the Police Royal Commission as its own, to initiate or continue the investigation of any such matters where appropriate, and otherwise to deal with those matters under the Police Integrity Commission Act 1996 (NSW).

Use of Intercepted Information

In the case of Taciak v. Commissioner of Australian Federal Police (1995)131 ALR 319 it was held that information that was lawfully intercepted could not be used by the Commissioner of the AFP when deciding whether to reappoint a person as a police officer.Taciak was a non-commissioned officer with the AFP.His term was to conclude on 1 July 1995 and in May 1994, he applied for reappointment.In deciding not to reappoint him, the Commissioner had regard to matters based on telephone conversations which had been intercepted and which evidenced alleged wrongdoing on Taciak's part.Sackville J. held that the legislation was framed on the basis of authorising the use of intercept information for a purpose connected with an investigation or inquiry into alleged misbehaviour or alleged improper conduct but that was insufficient to authorise the use of that information for a purpose connected with making a decision whether or not to reappoint or dismiss a person.

Main Provisions

Schedule 1

The amendments contained in Schedule 1 can be categorised under four headings.

New South Wales Police Integrity Commission (PIC)

Item 4 provides that the PIC is an 'eligible authority of a State'.This will allow the PIC to become an agency which may apply for interception warrants (following a declaration by the relevant State Minister under section 34 of the TI Act).In conjunction with item 43, it will also allow another agency to communicate lawfully obtained information to the PIC (section 68 TI Act).TheCommissioner, Assistant Commissioner and members of staff of the PIC may apply for interception warrants (item 26).

Use of Information

Items 10 and 11 amend the definition of 'permitted purpose' to allow intercepted information to be used by the AFP and State and Territory police when making a decision in relation to the appointment, re-appointment, term of appointment or retirement of a member of that police force.This is to overcome the decision of the Federal Court in Taciak v. Commissioner of Australian Federal Police (1995)131 ALR 319. (section 67 TI Act)

Item 12 further amends the definition of 'permitted purpose' to allow the PIC to use intercepted information in the investigation of and reporting of police misconduct.

Wood Royal Commission Recommendations

Item 15 has the effect of allowing intercepted information to be given to a coroner if in the coroner's opinion the event that is the subject of the inquest may have resulted from the commission of a prescribed offence (which is essentially an offence where the maximum punishment is imprisonment for 3 years or more).

Item 17 has the effect of allowing intercepted information to be in given bail application proceedings and proceedings of the PIC.

Persons Who Can Issue Interception Warrants

Item 19 allows the Minister to nominate the Deputy President, full-time senior members,part-time senior members (who arelegal practitioners) and members (who are legal practitioners) of the AAT to issue interception warrants.

Schedule 2

Division 2 of Part III of the Australian Federal Police Act 1979 allows members of the AFP to apply to an eligible Judge for warrants authorising the use of a listening device.

Schedule 2 amends the Australian Federal Police Act 1979.The amendments to that Act have the effect of allowing the Minister to nominate the Deputy President, full-time senior members,part-time senior members (who arelegal practitioners) and members (who are legal practitioners) of the AAT to issue warrants authorising the use of listening devices.

Schedule 3

Division 1A of Part XII of the Customs Act 1901 allows certain Commonwealth law enforcement agencies to apply to eligible Judges for warrants authorising the use of listening devices in the investigation of narcotics offences.

Item 2 of Schedule 3 amends the Customs Act 1901 to again permit the relevant Minister to nominate certain members of the AAT to issues these warrants.

Item 9 will allow the chief officer of a Commonwealth law enforcement agency to communicate information obtained by use of a listening device directly to the PIC, where that information appears to relate to the commission of a prescribed offence (i.e. a narcotics offence or offence punishable by a maximum imprisonment of at least 3 years).

Schedule 4

Item 5 of Schedule 4 adds the PIC and the Australian Bureau of Criminal Intelligenceas organisations which the Director of the Australian Transaction Reports Centre may authorise to have access to financial transactions reports information.However, item 4 requires that the Director must not authorise that access until the respective organisation undertakes to comply with the Information Privacy Principles set out in the Privacy Act 1988.

Concluding Comments

The Attorney-General remarks in his second reading speech:

In addition, there is a more fundamental issue involved.

The High Court has recently indicated that the use of judges as designated officials to perform certain administrative functions may be incompatible with the judicial function as it can undermine public confidence in the independence and integrity of the Judiciary.

Whilst it is true to say that the High Court indicated in Grollo that the performance of certain administrative functions by judges may be incompatible with the judicial function, the Court specifically held that the performance of the particular function in question, i.e. the issue of interception warrants, was not incompatible with the judicial function.It would be curious if this had been the primary impetus for the proposed amendments to the legislation allowing non-judicial members of the AAT to issue warrants.

However, in addition to the amendments being prompted by concerns as to incompatibility of function, the Attorney-General comments that eligible judges of the Federal Court have decided that they should no longer perform this function.

The unwillingness of the judges to continue as the repository for the power to issue warrants means that questions as to constitutionality and incompatibility of function take on less significance.The government simply has no choice but to find someone else to exercise the power.The majority in Grollo expressly provided that a non-judicial function cannot be conferred on a judge without his or her consent.(13)

The majority in Grollo commented:(14)

Yet it is precisely because of the intrusive and clandestine nature of interception warrants and the necessity to use them in today's continuing battle against serious crime that some impartial authority, accustomed to the dispassionate assessment of evidence and sensitive to the common law's protection of privacy and property, be authorised to control the official interception of communications.

Although the AAT is part of the executive arm of government, there can be no doubt that its members are independent and that its presiding members are accustomed to the dispassionate assessment of evidence in the same manner as members of the judiciary.To suggest otherwise is to misunderstand the role of the AAT and the manner in which it performs its function.

The second argument in favour of members of the AAT performing the role of issuing interception warrants is: Is there any other group in whom it would be appropriate to repose this power?

The exercise of a power as invasive as authorising the interception of telecommunications should be seen to be controlled by those who are known and respected for neutrality and who have the confidence of the community.With the greatest respect to members of the AAT, the acceptability of this proposal to the community and the confidence of the community in the control of interception of telecommunications will depend on an assessment of the ability of the nominated members of the AAT to exhibit the necessary neutrality and detachment in the exercise of the power.

Endnotes

  1. Section 7(1).
  2. Section 7(2)(b).
  3. Section 39(1).
  4. Section 6D. The Minister referred to is a Minister of the Crown of the State.
  5. Grollo v. Commissioner of Australian Federal Police and Others (1995)184 CLR 348 at 357
  6. See Re Judiciary and Navigation Acts (1921)29 CLR 257, commonly referred to as the Advisory Opinions case; Victorian Stevedoring and General Contracting Co Pty Ltd v. Dignan (1931)46 CLR 73; R v. Kirby; Exparte Boilermakers' Society of Australia (1956)94 CLR 254 commonly referred to as the Boilermaker's case.
  7. Drake v. Minister for Immigration and Ethnic Affairs (No.1) (1979)46 FLR 409; Hilton v. Wells (1985)157 CLR 57.
  8. (1990)169 CLR 307.
  9. Attorney-General and Minister for Justice (Daryl Williams), Second reading speech. House of Representatives, Hansard, 14 May 1997, p.3445.
  10. Royal Commission into the New South Wales Police Service, Final Report, May 1997.
  11. ibid., pp.450-51.
  12. Police Integrity Commission Act 1996, section 13.
  13. at pp. 364-365.
  14. at p. 367

Contact Officer and Copyright Details

Lee Jones
24 July 1997
Bills Digest Service
Information and Research Services

This Digest does not have any official legal status. Other sources should be consulted to determine whether the Bill has been enacted and, if so, whether the subsequent Act reflects further amendments.

IRS staff are available to discuss the paper's contents with Senators and Members and their staff but not with members of the public.

ISSN 1328-8091
© Commonwealth of Australia 1997

Except to the extent of the uses permitted under the Copyright Act 1968, no part of this publication may be reproduced or transmitted in any form or by any means, including information storage and retrieval systems, without the prior written consent of the Parliamentary Library, other than by Members of the Australian Parliament in the course of their official duties.

Published by the Department of the Parliamentary Library, 1997.

This page was prepared by the Parliamentary Library, Commonwealth of Australia
Last updated: 23 July 1997


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