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
Contact Officer & Copyright Details
Telecommunications (Interception) Legislation Amendment
Date Introduced: 16 February 2000
House: House of
Commencement: In general, on Royal Assent.
The Bill provides
for new classes of interception warrant to be granted to ASIO and
law enforcement agencies, specifies the circumstances in which
those new classes of warrant can be granted and the reporting
requirements that attach to them, and enables intercepted
information which has been admitted in 'exempt proceedings' to be
used as evidence in any other legal proceedings.
Prior to the commencement of the Telephonic
Communications Act 1960 (Cwlth) there were no statutory
prohibitions on telephone interception in Australia. The 1960 Act
prohibited telephone interception except in very limited
circumstances. Interceptions could only be carried out for national
security reasons or by the Postmaster-General's Department for
technical purposes or to trace unlawful calls (eg nuisance calls).
Interception for general law enforcement purposes was not
permitted. The use of telephone intercepts for general law
enforcement purposes 'lacked a secure legal basis until the
enactment of the Telecommunications (Interception) Act
1979'(1) (the Principal Act).
As originally enacted, the Principal Act enabled
interception warrants to be granted for the investigation of
narcotics offences under the Customs Act 1901. Since 1979,
the offences in relation to which warrants are obtainable have
multiplied and the number of agencies authorised to apply for
interception warrants has increased.
The Principal Act prohibits the interception of
telecommunications except in specified circumstances. In general,
these are in order to operate or maintain the telecommunications
system or pursuant to a warrant.(2)
The Principal Act stipulates the purposes for
which interception warrants may be obtained, who can apply for and
issue such warrants, the form and content of warrant applications,
the criteria that must be satisfied before warrants can be issued,
the scope of warrants and record keeping and reporting
requirements. At present, interception warrants relate to an
identified telecommunications service. These warrants will be
referred to as 'telecommunications service warrants.'
Under the Principal Act warrants can be obtained
for two purposes. The first is for national security. The second is
for law enforcement.
The Attorney-General may issue warrants for the
interception of telecommunications where the subject of the warrant
is reasonably suspected of engaging in activities prejudicial to
security. An application for such a warrant is made to the
Attorney-General by ASIO's Director-General of Security. In certain
circumstances, the Director-General may issue a warrant for a
limited period if waiting for a response from the Attorney-General
would seriously prejudice national security.
Where a law enforcement agency wishes to obtain
an interception warrant, an application must be made to an
'eligible judge' or nominated member of the Administrative Appeals
Tribunal (AAT). Interception warrants can only be issued in
relation to the investigation of what are called class 1 and class
2 offences. Class 1 offences include murder, kidnapping, and
narcotics offences.(3) Class 2 offences include offences
punishable by imprisonment for life or a period of at least 7 years
and offences where the offender's conduct involves serious personal
injury, drug trafficking or serious fraud.(4)
Law enforcement agencies who can apply for
interception warrants are prescribed in the Principal Act. They are
the Australian Federal Police and the National Crime Authority. The
Principal Act also provides for 'eligible authorities'. An
'eligible authority' can access intercepted information obtained by
other intercepting agencies which is relevant to their
investigations.(5) Additionally if a Ministerial
declaration is in force for an 'eligible authority' of a
State(6) then that 'eligible authority' can apply for
and obtain interception warrants.(7) 'Eligible
authorities' are the police services of each State and the Northern
Territory, the NSW Crime Commission, the Royal Commission into the
NSW Police Service, the NSW Police Integrity Commission, the NSW
Independent Commission Against Corruption (ICAC), the Queensland
Criminal Justice Commission, the Queensland Crime Commission and
the Western Australian Anti-Corruption Commission.(8) As
at 30 June 1999, Ministerial declarations were in force for the
Victoria Police, the NSW Crime Commission, the NSW Police Service,
ICAC, the South Australia Police, the WA Police Service and the NSW
Police Integrity Commission.(9)
An application by a law enforcement agency for
an interception warrant must be accompanied by an affidavit
containing prescribed information.(10) Further, before
issuing an interception warrant the eligible judge or nominated AAT
member must be satisfied of the matters set out in the Principal
Act.(11) There are differences in the statutory
prerequisites for issuing warrants for class 1 and class 2
offences. Thus, before issuing a warrant in the case of a class 2
offence, the Judge or AAT member must consider the gravity of the
offence and how much the privacy of any person or persons would be
interfered with as a result of the warrant application being
The Principal Act also contains a number of
record keeping and reporting requirements. For example, prescribed
information about warrants must be kept by the Australian Federal
Police in a warrant register and sent to the Commonwealth Minister
every three months.(12) State and Territory 'eligible
authorities' for which a Ministerial declaration is in force must
operate under equivalent inspection and reporting
provisions.(13) The Commonwealth Ombudsman reports
annually to the Minister on the record keeping obligations imposed
by the Principal Act.(14) Finally, the Minister must
report annually to Parliament about the operations of the Principal
Further details about the Principal Act are
contained in the Main Provisions section of this Digest.
and Listening Device Amendment Act 1997
The Principal Act has been amended on many
occasions. The most recent, significant amendments were made by the
Telecommunications (Interception) and Listening Device
Amendment Act 1997 (the 1997 Act) which:
- enabled nominated members of the Administrative Appeals
Tribunal to issue interception warrants
- designated the NSW Police Integrity Commission as an 'eligible
authority' thus enabling it to be empowered by the Attorney-General
to issue interception warrants, and
- extended categories of 'exempt proceedings' under the Principal
Act (see below).
Telecommunications Interception Policy
Another feature of the 1997 Act was that it
required a review to be carried out of the changes it effected. Due
to 'the changing environment for telecommunications
interception'(16) the scope of this review was extended
to consider matters such as the issuing of 'named persons' warrants
(see below). In May 1999 the First Assistant Secretary of the
Attorney-General's Department's Information and Security Law
Division presented the policy review to the Minister.
The Bill incorporates some of the
recommendations of the Telecommunications Interception Policy
Review. The most important of these are provisions for 'named
persons' warrants and the extension of the use to which intercepted
material may be put in legal proceedings.
The Bill provides for the issuing of 'named
person' warrants to ASIO and to law enforcement agencies. A named
person warrant is one which enables any telecommunication service
that a named individual uses or is likely to use to be intercepted.
It can be contrasted with the current provisions in the Principal
Act which only enable warrants to be obtained in relation to a
particular identified telecommunications service.
The Policy Review commented:
The Interception Act was drafted on the basis of
a particular telecommunications service being provided to each
business, family or individual. The assumption was that an
investigation of a particular offence would involve interception of
the service to which the suspect subscribed. Digital technology
makes this assumption less relevant.
Since warrants under the Interception Act are
issued in relation to a particular identified service, agencies
must often obtain multiple warrants for the same target to cover
all telecommunications services that they may use. This appears to
be one reason for the substantial increase in numbers of warrants
issued in recent years and adds considerably to the administrative
process of seeking authorisation for interceptions and to costs. An
ability to obtain warrants against individuals offers a solution to
legal aspects of this problem if privacy concerns can be
In addition to the delays associated with
obtaining replacement warrants, the ease with which an individual
can use multiple telecommunications services has been the subject
of comment. Thus:
... a person may subscribe to multiple services
by acquiring several pre-paid mobile telephone services which may
be used in the one telephone handset, and swapped around and
discarded at will.(18)
The Policy Review also commented that the
telecommunications services used by a suspect may be initially
unknown-a situation not catered for by the existing
telecommunications service warrant.(19)
Chapter 3 of the Policy Review considered some
of the issues surrounding 'named persons' warrants and the practice
in overseas jurisdictions. For example, in the United States prior
to 1998 an interception warrant against an individual could only be
obtained if the applicant agency satisfied a judge that:
- the individual was using telephone services to further serious
criminal activity, and
- the individual was using telephone services in such a way as to
The last requirement-which effectively obliged
an agency to show a person's intentions-was changed in 1998. The
agency must now show 'probable cause' that the suspect's actions
have the effect of thwarting interception from a specified
facility. An agency's activities are further controlled in the USA
by applying the principle of 'minimisation'. 'Minimisation' means
that the monitoring agency must conduct its monitoring operations
in 'real time' and 'cease monitoring if the target individual is
not involved in the conversation.'(20) The Policy Review
This [approach] is not sustainable where modern
technology is employed since it may be necessary to record and
process the product before its content can be analysed.
Minimisation of this kind is not appropriate in
the modern multimedia environment where it is often necessary to
record product and perform considerable processing before the
content becomes sufficiently intelligible for the participants to
be identified. Minimisation was introduced in the days of
headphones and tape recorders; today, destruction of product is
more appropriate provided that adequate safeguards are in
At the same time, the Policy Review quotes FBI
Director, Louis Freeh, as saying that even with the restrictions
imposed by minimisation, his agency's ability to issue interception
warrants against individuals has been of great benefit to law
In the United Kingdom named person warrants can
be obtained but must specify the telephone numbers that the suspect
is known to use. Once issued, a senior police officer is able to
add additional telephone numbers to the list.
The Policy Review acknowledged privacy concerns
about named person warrants and the need to ensure that any power
to issue them is not misused. It said:
Privacy concerns centre around the possibility
that non-target individuals could also be intercepted. The most
common situation is that in which a service would be subject to
continued interception because of infrequent use by a target
individual; in this case, all people using that service would also
be subject to interception without due cause. While this is also
possible under existing law, it may be more likely, and may occur
more frequently if warrants against individuals are
The Policy Review recommended that 'The Act
should be amended to allow, subject to additional reporting
requirements, a warrant to be issued against a named
Extension of the purposes for
which intercepted material may be used
The Policy Review also considered the use of
intercepted material in legal proceedings.
Part VII of the Principal Act is entitled
'Dealing with intercepted information'. Subject to other provisions
in Part VII, section 63 prohibits the communication of lawfully
obtained information gathered by a telecommunications intercept
being communicated to another person or given in evidence in legal
Other relevant provisions in Part VII are
sections 77 and 74. Section 77 provides that intercepted material
is inadmissible as evidence in a proceeding except where it is
expressly permitted. Section 74 contains an express permission
which enables lawfully obtained information to be given in evidence
in an 'exempt proceeding'.
Section 74 of the Principal Act was inserted
into the Principal Act by the Telecommunications (Interception)
Amendment Act 1987. (25)As the section was
originally formulated, an 'exempt proceeding' was defined by
reference to prosecutions for 'prescribed offences', proceedings
for forfeiture of property, certain extradition proceedings, police
disciplinary proceedings or other proceedings relating to
misbehaviour by Commonwealth or State officers.(26)
'Prescribed offences' include serious offences and offences
punishable by life imprisonment or imprisonment for three
years.(27) A 'serious offence' means a class 1 offence
or a class 2 offence.(28)
The categories of 'exempt proceeding' have been
expanded since the passage of the 1987 amendments. For example, the
1997 Act extended the definition of 'exempt proceeding' to
- a bail application relating to a prosecution for a prescribed
- a coronial inquest which is examining an event that may have
been caused by the commission of a prescribed offence
- an application for a restraining order preventing the disposal
of property pending the outcome of proceedings connected to the
commission of a prescribed offence, and
- decision-making about whether to appoint or dismiss a member of
a police service.(29)
While section 74 enables lawfully obtained
information to be given in evidence in an exempt proceeding, it is
silent about the consequences of giving that evidence. This issue
arose for decision in the NSW Court of Appeal in the case of
Wood v. Beves.(30) In this case, the Court held
(2:1) that intercepted information that had been admitted into
evidence in 'exempt proceedings'-in this case, hearings of the
Royal Commission into the New South Wales Police Service-could not
be admitted into evidence in related contempt proceedings. The
majority of the court said that the contempt proceedings were not
an 'exempt proceeding' under section 5B of the Act. The majority
also rejected an argument that once lawfully obtained information
had been given in public the prohibitions on its use contained in
Part VII of the Principal Act no longer applied.
The Policy Review received submissions from a
number of law enforcement agencies arguing that the purposes for
which intercepted information could be used should be expanded.
Some of these submissions suggested that the Principal Act should
be amended to extend the meaning of 'exempt proceedings' to include
The Policy Review also recorded concerns
expressed by the Australian Privacy Charter Council that the 1997
Act '... represented an undesirable erosion of the important
principle that intercept "product" should only be used for purposes
consistent with the serious crime and national security grounds for
which the warrants are granted in the first
Nevertheless, the Policy Review recommended that
the Principal Act be amended:
... to permit any court or tribunal to receive
intercepted information into evidence where that evidence has
already entered the public domain.
Without the prospect for such an amendment, the
absurd result [is] that intercepted information that properly finds
its way into the public domain by route of an exempt proceeding
cannot be used in evidence in consequential or related
The Bill adopts the recommendation made in the
Schedule 1-Inspector of the Police
Integrity Commission (NSW)
The Police Integrity Commission (PIC) was
established by the Police Integrity Commission Act 1996
(NSW) and was an outcome of the Wood Royal Commission into the New
South Wales Police Service. The PIC's principal objects include
detecting, investigating and preventing police corruption and other
serious police misconduct.(33) Section 88 of the Police
Integrity Commission Act enables an Inspector of the Police
Integrity Commission to be appointed. The main functions of the
Inspector include auditing the operations of the Police Integrity
Commission and investigating complaints that the Commission has
abused its power or acted improperly.
Among other things, Schedule 1 makes the
Inspector of the Police Integrity Commission an 'eligible
authority' under the Principal Act.(34)
Schedule 2-Named persons warrants and
foreign communications warrants
ASIO and named person
Section 9 of the Principal Act enables the
Attorney-General to issue a warrant to the Director-General of
Security for the interception of a particular telecommunications
service. The effect of items 7-8 of the Bill is to
enable named person warrants as well as telecommunications service
warrants to be granted to the Director-General.
Item 8 inserts new
section 9A into the Principal Act. The matters about which
the Attorney-General must be satisfied before issuing a named
person warrant to the Director-General are modelled on those in
existing section 9. In addition, the Attorney-General must be
satisfied that relying on a telecommunications service warrant to
obtain the information would be ineffective [new paragraph
Item 8 also inserts new
section 9B into the Principal Act. This new section
replicates existing subsections 9(3)-(6) which are repealed by
item 7 of Schedule 2. For example, new
section 9B provides that telecommunications service and
named person warrants must state the hours during which any entry
onto premises is authorised and whether permission for entry must
first be sought. Warrants can only remain in force for 6
months-although a further warrant can be issued. The period of the
warrant must be stated on the warrant.
ASIO and named person warrants
for the collection of foreign intelligence
Paragraph 17(1)(e) of the Australian
Security Intelligence Organisation Act 1979 (the ASIO Act)
empowers ASIO to obtain foreign intelligence in Australia under the
ASIO Act or the Telecommunications (Interception) Act
1979. 'Foreign intelligence' is defined in the ASIO Act as
'intelligence relating to the capabilities, intentions or
activities of a foreign power.'(35)
A new heading to section 11A of the Principal
Act replaces the existing heading in the Principal Act
(item 9). Section 11A is presently headed
'Warrants for the performance of functions under paragraph 17(1)(e)
of the ASIO Act'. The new heading is 'Telecommunications service
warrant for the collection of foreign intelligence'. This new
heading distinguishes telecommunications service warrants from the
proposed new named person warrants.
The amendments enable the Attorney-General,
following a request from the Director-General of Security, to issue
a 'named person' warrant for the collection of foreign intelligence
within Australia (new section 11B and item
1 of Schedule 3). The request must include the name/s by
which the person is known and details identifying the services the
person or foreign organisation is likely to use (to the extent that
these details are known). The matters about which the
Attorney-General must be satisfied before issuing a named person
warrant are similar to those found in existing section 11A of the
Principal Act. Thus, the Attorney must be satisfied that obtaining
foreign intelligence is important to Commonwealth defence or
international affairs. Additionally, new section
11B provides that the Attorney-General must be satisfied
that it is necessary to intercept the communications of the 'named
person' or foreign organisation in order to obtain the foreign
intelligence and that use of a telecommunications service
warrant for this purpose would be ineffective [new
paragraph 11B(1)(b)]. A 'foreign organisation' is defined
to include a government outside Australia [new subsection
ASIO and foreign communications
In addition to enabling ASIO to obtain named
person warrants for collecting foreign intelligence 'within
Australia',(36) the Bill also provides for a new type of
warrant for the collection of foreign intelligence-the foreign
communications warrant. A foreign communications warrant will
enable ASIO, operating 'within Australia',(37) to
intercept communications 'sent or received outside
Australia'(38) for the purposes of collecting foreign
Such a warrant is not limited to either specific
persons or specific telecommunications services.(39)
As the Explanatory Memorandum states, foreign
... will enable the interception of particular
communications which cannot be identified by reference to specific
services or named individuals. This is a feature of the
sophisticated digital technologies which are increasingly dominant
in modern telecommunications systems. The Bill limits the power to
issue this category of warrant to interception for the purpose of
collecting foreign intelligence.(40)
New paragraph 11C(1)(i) enables
the Director-General of Security to apply to the Attorney-General
for a foreign communications warrant for the purpose of obtaining
The Attorney may issue a foreign communications
warrant if satisfied that collecting the foreign intelligence is
important to Australia's defence or international affairs
and that it is necessary to intercept foreign communications
to collect the intelligence and that it would not be
effective to use a telecommunications service or named person
warrant. Only foreign communications can be intercepted by a
foreign communications warrant [new subsection
A foreign communications warrant must include a
notice to the carrier of the relevant communications system 'giving
a description that is sufficient to identify the part of the
telecommunications system that is covered by the warrant'
[new paragraph 11C(4)(a)].
New subsection 11C(5) provides
that if the Director-General is satisfied that a communication
intercepted under a foreign communications warrant is not relevant
to the purposes specified in the warrant, the communication and any
copies of it must be destroyed. The Explanatory Memorandum states
that 'Any material collected which is irrelevant to [the purpose
for which the warrant was sought] must be destroyed
forthwith.'(41) However, there is no provision in the
Bill specifying a time frame in which such material is to be
General provisions applying to
ASIO foreign intelligence warrants
The Director-General of ASIO cannot ask for a
foreign intelligence warrant in order to collect information about
an Australian citizen or permanent resident [new section
However, the Bill contemplates that foreign
communications warrants may incidentally capture intelligence about
Australian citizens or permanent residents. New subsection
11D(6) provides that conditions or restrictions that may
be placed on an ASIO warrant by the Attorney-General include
conditions or restrictions designed to minimise the collection of
information about Australian citizens or permanent residents that
is not publicly available or the retention of that information.
Information to be provided to
the Managing Director of a carrier
Under subsection 15(1A) of the Principal Act
when an interception warrant is issued to ASIO, the Managing
Director of the relevant carrier must be informed and given a copy
of the entire warrant. Item 13 amends paragraph
15(1A)(a) by providing that foreign communications warrants issued
under new section 11C are an exception to this
Item 15 repeals existing
subsection 15(7) of the Principal Act and inserts new
subsection 15(7). Existing subsection 15(7) requires
carriers to keep copies of warrants and warrant revocations. These
provisions do not appear to have been re-made elsewhere in the
Bill. New subsection 15(7) requires the Managing
Director of a carrier to be informed 'forthwith' of the issue of a
foreign communications warrant and to be given a copy of that part
of the warrant describing the part of the telecommunications system
that is covered by the warrant.
New section 16 deals with
notification requirements where ASIO has obtained a named person
warrant. If a Managing Director of a carrier has been given a copy
of a named person warrant which did not identify the service to be
intercepted, the Managing Director must be given identifying
information about the service as soon as practicable.
Provisions for reporting by the Director-General
of Security to the Attorney-General are amended to take account of
the new warrants (items 17 & 18)
Law enforcement agencies and
named person warrants
Item 20 amends subsection 42(4)
of the Principal Act. Section 42 sets out the information which
must accompany an application for an interception warrant. The
amendment effected by item 20 makes it clear that
subsection (4) relates to telecommunications service warrants.
Subsection 42(4) provides that the affidavit accompanying an
application for such a warrant must include the grounds on which
the application is justified, the period for which the warrant is
needed, the number of previous applications for warrants that have
been made in respect of the telecommunications service or the
person, the number of warrants that have been issued and how the
agency has used the information obtained by interception.
Item 21 inserts new
subsection 42(4A) into the Principal Act. The information
required for an application for a named person warrant generally
reflects that required for a telecommunications service
warrant.(42) In addition, the affidavit accompanying the
application must contain the name/s by which the person is known
and details identifying the telecommunications services the person
uses or is likely to use (to the extent that these details are
Item 22 inserts new
section 45A. New section 45A details the
matters an 'eligible Judge' or AAT member must be satisfied of
before issuing a named person warrant in relation to a class 1
offence. In general, these matters reflect section 45 of the
Principal Act which specifies the matters about which a Judge or
AAT member must be satisfied before granting a telecommunications
service warrant in relation to a class 1 offence. Thus, the Judge
or AAT member must be satisfied that statutory requirements about
the form and content of the warrant application have been met and
that information obtained by an interception warrant would assist
in the investigation of a class 1 offence. The Bill stipulates
that, additionally, he or she must be satisfied that there are
reasonable grounds for suspecting that a person is using more than
one telecommunications service. Further, the Judge or AAT member
must have regard to the extent to which other methods of
investigation including the use of a telecommunications service
warrant are available and useful.
Item 23 inserts new
section 46A which deals with the issuing of named person
warrants in relation to class 2 offences. New section
46A is modelled on section 46 of the Principal Act which
relates to the issuing of telecommunications service warrants in
relation to class 2 offences. As with existing section 46(2) there
is also a list of matters which the eligible Judge or AAT member
must consider before issuing a named person warrant in relation to
a class 2 offence. In large part, these replicate provisions in
subsection 46(2). For example, regard must be had to individual
privacy and the gravity of the conduct being investigated. Regard
must also be had to the extent to which other investigatory
methods-including use of a telecommunications service warrant-are
available and useful.
Item 25 inserts new
subsection 49(2) which provides that a named person
warrant can exclude interception of a particular telecommunications
Item 26 amends section 60 of
the Principal Act to provide that if, when the Managing Director of
a carrier is informed about the issue of a named person warrant,
the warrant does not identify the service to be intercepted, he or
she must be given a description of the service to be intercepted as
soon as practicable.
Record keeping and reporting
requirements relating to interception warrants issued to law
Items 28-30 relate to records
of interception warrants which must be kept by the AFP Commissioner
and the NCA Chairman [sic]. The amendments effected by these items
require the Commissioner and the Chairman [sic] to keep records of
which communications services have been intercepted as a result of
a named person warrant.(43)
Item 31 repeals and replaces
paragraphs 81A(2)(d) & (e) of the Principal Act. Section 81A of
the Principal Act requires the AFP Commissioner to keep a General
Register of Warrants and specifies the particulars which must be
recorded in it. The Attorney-General must be provided with
quarterly updates of the General Register.(44) The
amendments additionally provide that in the case of a named person
warrant the Register must include the name of the person to whom
the warrant relates and the telecommunications services that are
the subject of the warrant.
Similar amendments are made to section 81C of
the Principal Act in relation to the Special Register of Warrants
which is kept by the AFP Commissioner (see item
32). The Special Register of Warrants is a register of
expired warrants. Quarterly updates of the Special Register are
presented to the Attorney-General.(45)
Under the Principal Act the Minister must be
provided with written reports about interception warrants issued to
law enforcement agencies. Two types of report are provided for. The
first must be supplied to the Minister within three months of a
warrant expiring [subsection 94(2)]. This report must contain
information about what use was made of the intercepted information,
who the information was communicated to, the number of arrests made
and the usefulness of the information obtained. Item
33 amends subsection 94(2) so that these requirements
relate only to telecommunications service warrants.
Item 34 inserts new
section 94B. New section 94B sets out the
information which must be included in a report to the Minister
about named person warrants within three months of those warrants
expiring. The report must identify the service from which
communications were intercepted, state why it would not have been
effective to use a telecommunications service warrant, indicate the
use made of the intercepted information and who the information was
communicated to. It must also include the number of arrests
associated with the use of the information and assess the
usefulness of the intercepted information.
The second type of report that must be provided
to the Minister is mandated by subsection 94(3) of the Principal
Act. This stipulates that the Minister must be given a report at
the end of each financial year containing the information about law
enforcement interception warrants that, in turn, must be reported
by the Minister to Parliament.(46) These provisions will
apply to named person warrants as well as to telecommunications
Schedule 3-Miscellaneous and
Item 12 amends the definition
of 'exempt proceeding' contained in section 5B of the Principal
Act. An exempt proceeding currently includes a prosecution for a
prescribed offence, proceedings for the forfeiture of property,
extradition proceedings relating to a prescribed offence, police
disciplinary proceedings, bail applications in relation to
prosecution for a prescribed offence and reviews of decisions to
refuse such a bail application. Item 12 adds to
the list of exempt proceedings reviews of decisions to grant a bail
Item 16 inserts new
section 6P into the Principal Act. New section
6P provides that a service can be identified by a number
assigned to it from time to time or by any other unique identifying
factor. This amendment will, presumably, enable warrants to be
issued with reference to identifiers such as SIM card numbers.
Item 58 inserts new
section 75A. New section 75A provides
that information given in evidence in an exempt proceeding can be
admitted as evidence in any proceeding. This amendment has a
retrospective operation, but the extent of the retrospectivity is
not entirely clear. Will the amendment retrospectively validate
evidence given in any proceedings at any time so long as that
evidence was first admitted in 'exempt proceedings'? Or will it
only validate evidence given after the commencement of new section
75A so long as that evidence was first given in 'exempt
proceedings' at any time?
The Telecommunications (Interception) Act
1979 has been extensively amended since its original
enactment. In his Second Reading Speech for the Telecommunications
(Interception) Legislation Amendment Bill 2000 the Attorney-General
The amendments ... proposed in the Bill will
build on and develop the existing legislative scheme to ensure that
it continues to support law enforcement and security agencies in
the face of developments in technology and the deregulation and
globalisation of the telecommunications industry.
We must do this if we are to be effective in the
fight against crime.(47)
The Attorney added that criteria for issuing new
types of interception warrant would be more stringent and that
additional reporting requirements would be
Elsewhere it has been said that:
... the gradual normalisation of extraordinary
investigative power is a significant trend in criminal justice
reform. Electronic surveillance, like emergency legislation adopted
to combat terrorism, was initially tolerated as an exceptional
measure for designated offences which were not amenable to ordinary
investigative techniques. But once adopted, these "exceptional"
powers become an accepted and in due course an indispensable
feature of the Australian criminal justice
It is, of course, a matter for Parliament to
decide whether the Bill, in yet further expanding the range and use
of interception warrants, strikes an appropriate balance between
security and law enforcement needs on the one hand and the
protection of the individual from the power of the State on the
The Bill was referred to the Senate Legal and
Constitutional Legislation Committee which tabled its report on 11
May 2000. The Committee's terms of reference included the need for
named person warrants, the adequacy of safeguards and the adequacy
of reporting mechanisms.
The Committee reported that it had received few
submissions '... from non-user organisations whose major interest
is assumed to be in issues of individual privacy.' As a result of
the limited information available to it about privacy implications
the Committee recommended that:
... the Bill provide for a review of its
operations within three years of coming into effect. This review is
to have regard to the matters considered in the current reference
to this Committee.(50)
Two other areas of focus in the Committee's
report were named person warrants and new section 75A.
Named person warrants are designed to assist
ASIO and law enforcement agencies track suspects who are using
multiple telecommunications services without the need to seek a new
warrant in respect of each of those services. They also enable
agencies to intercept services 'at will' and have the potential to
intercept telecommunications services used by third parties. The
Committee considered evidence about the criteria for issuing named
person warrants and whether the Bill provided adequate monitoring
of the operation of named person warrants in relation to services
not identified in the warrants.
In relation to criteria, concerns were expressed
to the Committee that the statutory criteria for named person
warrants merely replicate those already existing for
telecommunications service warrants for class 1 and class 2
offences. It is only in the case of a telecommunications service
warrant in relation to a class 2 offence that the Judge or AAT
member must consider how much the privacy of any person or persons
would be likely to be interfered with as a result of the warrant
being issued.(51) The Bill adopts this scheme for named
person warrants in relation to class 2 offences.
Given the nature of named person warrants it
might be useful to ask whether the privacy clause should also be
adopted for class 1 offences, whether named person warrants should
be available for class 2 offences and whether the entire statutory
scheme needs revision in view of the fact that provisions for an
entirely new type of warrant are being grafted on to a statute
designed for a very different telecommunications climate.
However, after reviewing the evidence before it
the Committee was satisfied that named person warrants were needed
and that the 'Bill seeks to balance the needs of user-agencies with
the right to privacy of individuals.'(52)
The Committee also examined new section 75A
which enables intercept material which has been admitted as
evidence in 'exempt proceedings' to be admitted as evidence in any
other legal proceedings. Presumably, the expression 'any other
legal proceedings' includes civil as well as criminal
While recommending that the Principal Act be
amended along the lines adopted in new section 75A, the 1999 Policy
Review made the following comments about telecommunications
In recognition of the extraordinary nature of
the power, the Interception Act strictly limits the purposes for
which intercepted communications may be used. The boundaries of its
use are under constant pressure through prosecutorial action and,
over the years, some extensions have been made to address
particular concerns and remove anomalies. The principle has always
been maintained, however, that telecommunications interception is a
'last resort' power and should not be used unless serious crime or
national security is involved. Similarly, intercept product should
only be used for purposes which are consistent with this
After examining the evidence before it, the
Senate Committee concluded that the change proposed by new section
75A was 'more logical' than other suggestions and added that it was
'... in keeping with the view expressed in the minority decision in
Wood v. Beves.'(54) The minority judge, Handley
JA had said:
The consequences of the Act continuing to apply
to such information [information lawfully obtained by an
interception warrant which had been admitted in evidence in an
exempt proceeding] would be extraordinary and productive of ...
absurdities and injustices ...In my judgment by authorising the use
of lawfully obtained information in evidence in an exempt
proceeding, s 74(1) by necessary implication authorises its further
use free from restrictions imposed by the Act. The evidence having
lawfully entered the public domain may be further used,
communicated and recorded ...(55)
The Committee rejected the view of the Law
Society that section 75A would 'sound the death knell of the exempt
proceedings limitations'(56) and that the appropriate
response to the decision in Wood v. Beves would be to add
contempt proceedings to the category of 'exempt proceedings'.
However, the Committee recommended that '... a note should be
inserted into the Bill to make it quite clear that proposed section
75A is subject to the general rules of
- Simon Bronitt, 'Electronic surveillance, human rights and
criminal justice,' Australian Journal of Human Rights,
3(2), 1997, pp. 183-207 at p. 188.
- Section 7.
- Section 5, Telecommunications (Interception) Act
- Section 5D.
- Section 68.
- For the purposes of the Principal Act the expression 'State'
includes the Northern Territory (section 5).
- Sections 34 & 35. Section 35 sets out the prerequisites for
a Ministerial declaration.
- Section 5.
- Telecommunications (Interception) Act 1979. Report for the
Year Ending 30 June 1999.
- Section 42.
- Sections 45 & 46.
- Section 81A.
- Section 35.
- In general, see sections 82-92A.
- Sections 99-104.
- Attorney-General's Department, Telecommunications
Interception Policy Review, May 1999, p. 1.
- Senate Legal and Constitutional Legislation Committee,
Inquiry into the Provisions of the Telecommunications
(Interception) Legislation Amendment Bill 1999 [sic], May
- Policy Review, op.cit.
- ibid, p. 37.
- ibid, pp. 37-8.
- ibid, p. 38.
- ibid, pp. 40-41.
- ibid, p. 42.
- Prior to 1987, the relevant provision was section 7. It was
amended following the High Court's decision in Hilton v.
Wells (1985) 157 CLR 57. In this case the High Court held that
section 7 did not prevent the admission of illegally obtained
intercepted information in court proceedings.
- Section 5B, Telecommunications (Interception) Amendment Act
- Section 5.
- Section 5.
- Section 5B.
- (1997) 137 FLR 436.
- Policy Review, op.cit., p. 26.
- ibid, p. 29.
- Section 3.
- The Police Integrity Commission was given 'eligible authority'
status under the 1997 Act.
- Section 4, ASIO Act.
- Item 1 of Schedule 3.
- Item 1 of Schedule 3.
- New subsection 5(1).
- Explanatory Memorandum, pp. 3-4.
- Page 3.
- Page 8.
- For example, the number of previous applications for warrants
that the agency has made, the number of warrants previously issued
and details of the use made by the agency of information obtained
from the interceptions.
- New sub-paragraphs 81(1)(c)(v) & 81(2)(ba)(v) &
- Section 81B.
- Section 81D.
- Under Division 2 of Part IX of the Principal Act.
- Parliamentary Debates (Hansard), House of
Representatives, 16 February 2000, p. 13491.
- Bronnitt, op.cit., at p. 185.
- Senate Committee, op.cit., p. vii.
- Paragraph 46(2)(a).
- Senate Committee, op.cit., p. vii.
- ibid, p. 11.
- (1997) 137 FLR 436 at 442.
- Senate Committee, op.cit, p. 11.
31 May 2000
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