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CONTENTS
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.
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)
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.
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.
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.
- Section 7(1).
- Section 7(2)(b).
- Section 39(1).
- Section 6D. The Minister referred to is a Minister of the Crown
of the State.
- Grollo v. Commissioner of Australian Federal Police and Others
(1995)184 CLR 348 at 357
- 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.
- Drake v. Minister for Immigration and Ethnic Affairs (No.1)
(1979)46 FLR 409; Hilton v. Wells (1985)157 CLR 57.
- (1990)169 CLR 307.
- Attorney-General and Minister for Justice (Daryl Williams),
Second reading speech. House of Representatives, Hansard, 14 May
1997, p.3445.
- Royal Commission into the New South Wales Police Service, Final
Report, May 1997.
- ibid., pp.450-51.
- Police Integrity Commission Act 1996, section 13.
- at pp. 364-365.
- at p. 367
Lee Jones
24 July 1997
Bills Digest Service
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ISSN 1328-8091
© Commonwealth of Australia 1997
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