Bills Digest No. 176  1999-2000Telecommunications (Interception) Legislation Amendment Bill 2000


Numerical Index | Alphabetical Index

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
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details

Passage History

Telecommunications (Interception) Legislation Amendment Bill 2000

Date Introduced: 16 February 2000

House: House of Representatives

Portfolio: Attorney-General

Commencement: In general, on Royal Assent.

Purpose

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.

Background

Telecommunications interception

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As originally enacted, the Principal Act enabled interception warrants to be granted for the investigation of narcotics offences under the Customs Act 1901.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 granted.

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 Act.(15)

Further details about the Principal Act are contained in the Main Provisions section of this Digest.

Telecommunications (Interception) 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 Review

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.

'Named person' warrants

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 satisfied.(17)

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 avoid interception.

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 commented:

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 place.(21)

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 enforcement.(22)

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 introduced.(23)

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 individual.'(24)

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 proceedings.

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 encompass:

  • a bail application relating to a prosecution for a prescribed offence
  • 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 contempt proceedings.

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 place.'(31)

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.

It added:

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 proceedings.(32)

The Bill adopts the recommendation made in the Policy Review.

Main Provisions

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 warrants

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 9A(1)(c)].

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 5(1)].

ASIO and foreign communications warrants

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 intelligence.

Such a warrant is not limited to either specific persons or specific telecommunications services.(39)

As the Explanatory Memorandum states, foreign communications warrants:

... 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 foreign intelligence.

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 11C(2)].

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 destroyed.

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 11D(5)].

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 rule.

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 known).

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 service.

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 enforcement agencies

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 service warrants.

Schedule 3-Miscellaneous and consequential amendments

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 application.

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?

Concluding Comments

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 said:

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 mandated.(48)

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 system.(49)

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 other.

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 proceedings.

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 interception:

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 principle.(53)

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 admissibility.'(57)

Endnotes

  1. Simon Bronitt, 'Electronic surveillance, human rights and criminal justice,' Australian Journal of Human Rights, 3(2), 1997, pp. 183-207 at p. 188.
  2. Section 7.
  3. Section 5, Telecommunications (Interception) Act 1979.
  4. Section 5D.
  5. Section 68.
  6. For the purposes of the Principal Act the expression 'State' includes the Northern Territory (section 5).
  7. Sections 34 & 35. Section 35 sets out the prerequisites for a Ministerial declaration.
  8. Section 5.
  9. Telecommunications (Interception) Act 1979. Report for the Year Ending 30 June 1999.
  10. Section 42.
  11. Sections 45 & 46.
  12. Section 81A.
  13. Section 35.
  14. In general, see sections 82-92A.
  15. Sections 99-104.
  16. Attorney-General's Department, Telecommunications Interception Policy Review, May 1999, p. 1.
  17. ibid.
  18. Senate Legal and Constitutional Legislation Committee, Inquiry into the Provisions of the Telecommunications (Interception) Legislation Amendment Bill 1999 [sic], May 2000, p.1.
  19. Policy Review, op.cit.
  20. ibid, p. 37.
  21. ibid, pp. 37-8.
  22. ibid, p. 38.
  23. ibid, pp. 40-41.
  24. ibid, p. 42.
  25. 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.
  26. Section 5B, Telecommunications (Interception) Amendment Act 1987 (Cwlth).
  27. Section 5.
  28. Section 5.
  29. Section 5B.
  30. (1997) 137 FLR 436.
  31. Policy Review, op.cit., p. 26.
  32. ibid, p. 29.
  33. Section 3.
  34. The Police Integrity Commission was given 'eligible authority' status under the 1997 Act.
  35. Section 4, ASIO Act.
  36. Item 1 of Schedule 3.
  37. Item 1 of Schedule 3.
  38. New subsection 5(1).
  39. Explanatory Memorandum, pp. 3-4.
  40. Page 3.
  41. Page 8.
  42. 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.
  43. New sub-paragraphs 81(1)(c)(v) & 81(2)(ba)(v) & subsection 81(2A).
  44. Section 81B.
  45. Section 81D.
  46. Under Division 2 of Part IX of the Principal Act.
  47. Parliamentary Debates (Hansard), House of Representatives, 16 February 2000, p. 13491.
  48. ibid.
  49. Bronnitt, op.cit., at p. 185.
  50. Senate Committee, op.cit., p. vii.
  51. Paragraph 46(2)(a).
  52. Senate Committee, op.cit., p. vii.
  53. ibid.
  54. ibid, p. 11.
  55. (1997) 137 FLR 436 at 442.
  56. Senate Committee, op.cit, p. 11.
  57. ibid.

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