Bills Digest No. 121 2001-02
Telecommunications Interception Legislation Amendment Bill
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
Legislation Amendment Bill 2002
Date Introduced: 12 March 2002
House: House of Representatives
Commencement: Most of the amendments
commence on Royal Assent. Others, designed to cure drafting errors
in the Telecommunications (Interception) Legislation Amendment
Act 2000, are retrospective to 22 June 2000, the date on which
that Act commenced.
To amend the
Telecommunications (Interception) Act 1979 (the Principal
- permit telecommunications intercept warrants to be obtained to
investigate offences of terrorism, serious arson and child
- stipulate when services such as emails and voicemails will come
within the ambit of the Principal Act
- enable intercepted information to be passed on, for certain
purposes, to the NSW Independent Commission Against Corruption
(ICAC), WA Anti-Corruption Commission, the WA Royal Commission into
Police Corruption, and in connection with decisions to terminate
the appointment of police officers
- give certain powers to senior executive officers at the NSW
Independent Commission Against Corruption (ICAC), which may
currently only be exercised by the Commissioner or Assistant
- clarify that warrants authorising entry onto premises are
distinct from telecommunications service warrants and named persons
- make other miscellaneous amendments, including the removal of
references to defunct State bodies such as the Queensland Criminal
Justice Commission (CJC) and the substitution of references to its
replacement body, the Crime and Misconduct Commission (CMC).
The Bill also amends the Customs Act
1901 so that Federal Magistrates and Family Court judges as
well as Federal Court judges can issue listening device warrants
under that Act.
Legislation Amendment Bill 2001
On 27 September 2001, the Telecommunications
Interception Legislation Amendment Bill 2001 (the 2001 Bill) was
introduced into the House of Representatives. However, it had not
passed either Chamber before the Parliament was prorogued for the
2001 General Election and, consequently, it lapsed.
The 2002 Bill is substantially the same as the
2001 Bill. In brief, the major differences are:
- the addition of terrorist acts as offences that can be
investigated by means of a telecommunications interception
- the inclusion of new provisions that stipulate when a delayed
access message service such as an email or voicemail will come
within the ambit of the Principal Act
- the inclusion of an existing State body, the ICAC, and a new
State body, the Western Australian Royal Commission into Police
Corruption, as bodies that can receive lawfully intercepted
information from an intercepting agency when that information
relates to their investigations
- the removal of references to defunct State bodies such as the
CJC, the substitution of the names of replacement bodies and
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 [Principal Act].(1)
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 that can be investigated under an interception warrant
have multiplied and the number of agencies authorised to apply for
interception warrants has increased. The purposes for which
intercepted material can be used have also been broadened.
The Principal Act prohibits the interception of
a communication passing over a telecommunications system except in
specified circumstances.(2) In general, these are in
order to operate or maintain the telecommunications system or
pursuant to a warrant.(3)
How is interception of a
Section 6 of the Principal Act defines the
expression interception of a communication in the following
interception of a communication passing over a
telecommunications system consists of listening to or recording, by
any means, such a communication in its passage over that
telecommunications system without the knowledge of the person
making the communication.(4)
The words, passing over , include being carried
Types of interception
Warrants may be obtained in relation to a
particular identified telecommunications service (
telecommunications service warrants ), or any telecommunication
service that is used or likely to be used by a named individual (
named person warrants ). An application for an interception warrant
can include a request that the warrant authorise entry on to
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
Who issues interception warrants
and what are the purposes for which such warrants can be
Under the Principal Act warrants can be obtained
for two purposes. The first is for security and intelligence. The
second is for law enforcement.
Security and intelligence
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.(6) He or she may also issue interception
warrants for the collection of foreign
In certain circumstances, ASIO s
Director-General of Security may issue a warrant for a limited
period if waiting for a response from the Attorney-General would
seriously prejudice national security.(8)
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
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.(10) Class 2 offences include
offences punishable by imprisonment for life or a period of at
least 7 years where the offender s conduct involves serious
personal injury, drug trafficking or serious fraud, bribery or
Who may apply for an interception
ASIO s Director-General of Security may apply
for an interception warrant relating to national security or
The following agencies can apply for and obtain
interception warrants for the purpose of law
- the Australian Federal Police,
- the National Crime Authority, and
- an eligible authority of a State or the Northern
Territory(14) in respect of which a Ministerial
declaration is in force.(15) As at 30 June 2000,
Ministerial declarations were in force for the Victorian, NSW,
South Australian and Western Australian police services, the NSW
Crime Commission, the NSW Independent Commission Against Corruption
(ICAC) and the NSW Police Integrity Commission.(16)
Ministerial declarations are disallowable
instruments under the Principal Act.(17)
Some other agencies that are eligible
authorities under the Principal Act but for whom no Ministerial
declaration is in force can obtain lawfully intercepted information
from intercepting agencies when that information relates to their
Criteria that must be satisfied
before a warrant can be issued
An application by a law enforcement agency for
an interception warrant must be accompanied by an affidavit
containing prescribed information.(19) 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.(20) There are differences between
telecommunications service warrants and named person warrants.
There are also 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. Further,
additional information must be supplied before a warrant can
authorise entry on to premises.
When can intercepted information
be used and by whom?
Subject to certain exemptions, information
lawfully gathered by a telecommunications intercept may not be
communicated to another person(21) or given in evidence
in legal proceedings.(22) Some of the exceptions are set
Section 74 of the Principal Act expressly
permits lawfully obtained information to be given in evidence in an
exempt proceeding . There is a wide range of exempt
proceedings ,(23) including:
- prosecutions for prescribed offences (including class 1
offences, class 2 offences and offences punishable by life
imprisonment or imprisonment for three years(24))
- proceedings for confiscation or forfeiture of property
- certain extradition proceedings
- police disciplinary proceedings
- other proceedings relating to misbehaviour by Commonwealth or
- bail applications relating to a prosecution for a prescribed
- coronial inquests examining an event that may have been caused
by the commission of a prescribed offence
- proceedings of the Australian Federal Police, the National
Crime Authority, the Royal Commission into the NSW Police Service,
or the NSW Police Integrity Commission, and
- applications for restraining orders preventing the disposal of
property pending the outcome of proceedings connected to the
commission of a prescribed offence.
In addition, section 67 permits intercepted
information to be communicated to another person for a
permitted purpose . Those purposes which are permitted
include purposes connected with:(25)
- investigations into prescribed offences
- decisions whether or not to institute, and the conduct of,
relevant proceedings (26)
- investigations into and reporting on alleged misbehaviour or
improper conduct by a Commonwealth or State public servant
(including advice to terminate his or her employment)
- Commonwealth Royal Commission investigations and reports
- investigations and reports by the NSW Police Integrity
Commission of police misconduct, (including advice to terminate a
police officer s employment based on misconduct), and
- decisions relating to the engagement, retirement or termination
of the employment of Australian Federal Police officers.
Other circumstances in which disclosure is
There are further exceptions which permit
disclosure by particular persons in defined circumstances,
including the interceptor,(27) the chief officer of an
agency,(28) and members of the police
Thus, under section 68 of the Principal Act, the
chief officer of an intercepting agency can disclose intercepted
information to certain specified agencies when that information is
relevant to their investigations.(30) This is so whether
or not a Ministerial declaration is in force for that agency. These
agencies include the police services of the Commonwealth, each
State and the Northern Territory, the National Crime Authority, the
Royal Commission into the NSW Police Service, the NSW Police
Integrity Commission, the Inspector of the Police Integrity
Commission, the Queensland Crime Commission (QCC) and the Western
Australian Anti-Corruption Commission.(31)
The Principal Act creates the position of
certifying officer . Certifying officers have a number of powers
- the power (if such power is delegated by the chief officer of
the agency) to revoke a warrant which remains in force, if the
grounds on which the warrant was issued no longer
- the power to certify a true copy of an interception warrant
which is to be provided to a telecommunications
- the power to certify a true copy of an interception warrant
which can be received as evidence in court
- the power to issue an evidentiary certificate setting out facts
relating to the execution of an interception warrant and the use
made of intercepted information, which can be received as evidence
in court proceedings.(35)
The Principal Act designates a range of senior
executive officers of agencies including the Australian Federal
Police, the National Crime Authority, the police services of each
State and the Northern Territory, and various State investigative
bodies to be certifying officers . These State investigative bodies
include the NSW Police Integrity Commission and the WA
The Government s package of
The Bill is effectively part of a package of
counter-terrorism legislation introduced by the Howard Government
on 12 March 2002. The other Bills in the package are the Security
Legislation Amendment (Terrorism) Bill 2002 [No.2](36),
the Criminal Code Amendment (Suppression of Terrorist Bombings)
Bill 2002, the Suppression of the Financing of Terrorism Bill 2002,
and the Border Security Legislation Amendment Bill 2002. Other
components of the anti-terrorism package are the Criminal Code
Amendment (Anti-hoax and Other Measures) Act 2002 and the
Australian Security Intelligence Organisation Legislation Amendment
(Terrorism) Bill 2002 (the ASIO Bill).(37) The ASIO Bill
has been referred to the Parliamentary Joint Committee on ASIO,
ASIS and DSD for report by 3 May 2002. The other five
Bills(38) have been referred to the Senate Legal and
Constitutional Legislation Committee for report by the same
Readers of this Digest are referred to the
Digests that have been or will be produced for each of these Bills
and to two Parliamentary Library Research Papers, Terrorism
in Australia: Legislation, Commentary and Constraints and
and the Law in Australia: Supporting Materials.
The two Research Papers contain a detailed
treatment of issues associated with legislating to counter
terrorism. One relevant theme struck in those papers is that in
enacting specific anti-terrorism laws a cautious and considered
approach must be taken. If there was a thesis in the Terrorism
and the Law in Australia project it was that there are dangers
in underestimating our legislative and administrative
preparedness and that there are difficulties in striking an
appropriate balance between safety and liberty. The question of
preparedness and the difficulty of balancing safety and liberty are
considered in the Legislation, Commentary and Constraints
Paper. Comparative approaches in the United Kingdom and United
States are canvassed in the Supporting Materials Paper. In
summary, the Paper observes that while precedents are useful, we
will need our own views regarding the terrorist threat in Australia
and whether the measures in question are necessary, sufficient and
Also of note is the recent Leader s Summit on
Terrorism and Multi-Jurisdictional Crime. On 5 April 2002, the
Prime Minister and State and Territory Leaders negotiated an
Agreement on Terrorism and Multi-Jurisdictional Crime. In relation
to terrorism, this included an agreement to:
take whatever action is necessary to ensure that
terrorists can be prosecuted under the criminal law, including a
reference of power of specific, jointly agreed legislation,
including roll back provisions to ensure that the new Commonwealth
law does not override State law where that is not intended and to
come into effect by 31 October 2002. The Commonwealth will have
power to amend the new Commonwealth legislation in accordance with
provisions similar to those which apply under Corporations
arrangements. Any amendment based on the referred power will
require consultation with and agreement of States and Territories,
and this requirement to be contained in
At present, the details and implications of the
Agreement are not clear.
Schedule 1 Miscellaneous
As described above, interception warrants may
only be issued in connection with the investigation of class 1 or
class 2 offences.
The Bill includes an offence constituted by
conduct involving an act or acts of terrorism as a new class 1
offence (item 7). As stated earlier, existing
class 1 offences include murder, kidnapping and narcotics offences.
The effect of item 7 is that interception warrants
can be sought and obtained in connection with investigation of
terrorism offences, however described in relevant legislation
.(40) This statement, from the Explanatory Memorandum,
reflects the fact that the phrase 'an act or acts of terrorism' is
not defined in the Bill, a matter discussed in the Concluding
Comments to this Digest.
The Bill nominates two additional class 2
offences: serious arson (item 12) and offences
relating to child pornography (item 13). Although
the specific types of conduct involving child pornography are
defined in the Bill,(41) what constitutes serious arson
is not defined.(42) The other precondition of class 2
offences, namely, that the offence be punishable by imprisonment
for life or a period of at least 7 years, will apply also to these
The purpose of these amendments is to ensure
telecommunications interception is available as an investigative
tool in relation to these offences. This is particularly seen as
important in relation to conduct involving terrorist acts and child
pornography offences, the latter because of offenders increasing
use of telecommunications services such as the Internet and
Delayed access message
Item 15 inserts new
subsections 6(3)-(5). These amendments indicate when
delayed access message services such as emails and voicemails will
be regarded as communications passing over a telecommunications
system and thus subject to the provisions of the Principal Act,
including the requirement to obtain an interception warrant to
access those communications. If, for example, a person needs to
access a telecommunications service eg by dialling a number in
order to access their voicemail, then an interception warrant is
needed to access the voicemail message. If the recipient of the
message does not need to use a line to access their voicemail,
email or other delayed access message service , then that
communication will be called a stored communication and the
Principal Act is not applicable. The Explanatory Memorandum remarks
that, in such a case, some other form of lawful authority would be
required before a third party could access the message or the
The Bill extends the classes of officer at the
NSW Crime Commission, the ICAC and the NSW Police Integrity
Commission who are certifying officers . As stated above, the
powers of certifying officers include certifying a true copy of an
interception warrant that can be received as evidence in court
- members of the Crime Commission are certifying officers.
Item 3 provides that, in addition to members of
the Commission, persons occupying the position of senior executive
officers of the Commission are certifying officers when
- two people at the ICAC are certifying officers the Commissioner
and Assistant Commissioner. Item 4 will include,
in addition, appropriately authorised persons occupying the
position of senior executive officers of the ICAC.
- Commissioners of the Police Integrity Commission, Assistant
Commissioners and appropriately authorised senior executive
officers are certifying officers . Item 5 amends
the relevant provision so that authorised persons acting as senior
executive officers as well as authorised senior executive officers
themselves are certifying officers .
Purposes for which intercepted
information can be used
As described above, the Principal Act prohibits
the communication to another person of information lawfully
gathered by a telecommunications intercept, and the giving of such
information in evidence in legal proceedings. This general
prohibition is subject to a large number of exceptions, some of
which are listed above. For example, information may be given in
evidence in exempt proceedings . Information may also be
communicated to another person for a permitted purpose
The Bill inserts some additional exceptions, two
relating to the possible dismissal of police officers, one relating
to the WA Anti-Corruption Commission, and one relating to the
As previously mentioned, lawfully intercepted
information may be communicated for a permitted purpose , including
decisions relating to the engagement, retirement or termination of
the employment of Australian Federal Police officers. However, in
relation to State and Northern Territory police officers, currently
a permitted purpose only includes decisions relating to the
appointment, re-appointment, term of appointment or retirement of
an officer or member of staff of that police force. Item
9 will amend this to include decisions relating to
termination of appointment. This will bring the situation
into line with that applicable to AFP officers.
Intercepted information will also be able to be
communicated in relation to proceedings relating to the
termination of the employment both of members of the
Australian Federal Police and the police forces of a State or the
Northern Territory (item 18). This would include
proceedings such as claims for wrongful dismissal.
Item 10 inserts a new permitted
purpose for which intercepted information may be communicated,
namely, investigations and reports by the WA Anti-Corruption
Commission into allegations of corrupt conduct, criminal conduct,
criminal involvement or serious improper conduct by a police
officer or public officer. The purpose of this amendment is to
allow communication of intercepted information relating to
investigations into misconduct which may fall short of constituting
a criminal offence.(46) It is broadly similar to the
existing power of the NSW Police Integrity Commission.
As explained above, lawfully intercepted
information may be given in evidence in an exempt proceeding .
Exempt proceedings currently include police disciplinary
proceedings, and other proceedings relating to misbehaviour by
Commonwealth or State officers. Item 11 will add
proceedings relating to a decision by the Commissioner of the
Australian Federal Police or the police force of a State or the
Northern Territory to terminate the employment of a police officer.
This will permit lawfully intercepted information to be used in
evidence in such proceedings.
Communications by the chief officer of an
Section 68 permits the chief officer of an
agency to communicate information lawfully intercepted on a warrant
obtained by that agency to other agencies in certain circumstances.
Information may be communicated to the police where it relates to
the commission of an offence, or relates to acts which may give
rise to police disciplinary proceedings. Information may also be
communicated to various State investigatory authorities (the Royal
Commission into the NSW Police Service, the NSW Police Integrity
Commission, the Inspector of the Police Integrity Commission, and
the WA Anti-Corruption Commission and the QCC) where it may give
rise to investigations by those bodies. The 2002 Bill, unlike the
2001 Bill, adds to this list the communication of information to
the ICAC where the information may result in an investigation by
the ICAC (item 44).
In addition, the amendments will mean that the
chief officer of an agency may communicate information to the
relevant Australian Federal Police, State or Northern Territory
Police Commissioner if the information may cause the relevant
police commissioner to terminate the employment of the police
officers to whom the information relates (items 41 and
Clarification of warrants to enter
The Bill clarifies that warrants issued under
section 48 authorising entry onto premises are warrants in their
own right. A section 48 warrant to enter premises can only be
issued in circumstances where a judge or AAT member would have
power to issue a telecommunications service warrant, in respect of
either a class 1 or class 2 offence. It cannot be issued for a
named person. A number of items redraft existing provisions to make
this distinction clear (items 16, 24, 25, 27, 30, 32, 34,
45 and 46).
As with telecommunications service warrants, the
conditions in Division 3 of Part VI of the Principal Act must be
complied with before a section 48 warrant is issued (item
31). Unlike other warrants, since 22 June 2000 a warrant
authorising entry onto premises does not have to be executed by the
Australian Federal Police. Some minor amendments are made to
various provisions to reflect this (items 21 and
35-37). Similarly, an agency does not have to inform a
telecommunications carrier of the issue of a section 48 warrant
(item 38). This is because this requirement would
not be relevant to a warrant to enter onto premises, only to the
other types of warrant which authorise interference with
Some minor amendments are also made to correct
drafting errors introduced by the Telecommunications
(Interception) Legislation Amendment Act 2000
(items 23, 29, 33 and 39). These
amendments are retrospective to 22 June 2000, the date on which the
Telecommunications (Interception) Legislation Amendment Act
Items 1 and 2 repeal references
to Federal Court judges in the Customs Act 1901 and
replace them with references to a Judge of a court created by the
Parliament. These amendments will permit Federal Magistrates and
Family Court judges, as well as Federal Court judges, to issue
listening device warrants under the Customs Act. This brings the
Customs Act into line with the Principal Act. As with interception
warrants, judges must consent to be nominated to issue listening
Items 14 and 17 replace
references to a Victorian statute which has been repealed (the
Crimes (Confiscation of Profits) Act 1986 (Vic)) with
references to the current legislation (the Confiscation Act
Items 19 and 20 make minor
amendments to headings, which more accurately reflect the contents
of Parts V and VI. These amendments do not affect the substance of
the Principal Act.
Items 6, 8, 26, 28, 40 and 42
insert the connectors and and or as required.
Schedule 2 Amendment of the
Telecommunications (Interception) Act 1979 relating to new
and defunct State bodies
A number of State investigatory bodies are
referred to in the Principal Act. Some of these bodies have the
power to conduct telecommunications intercepts under warrant,
others are able to receive lawfully intercepted information from
intercepting agencies if the information is relevant to their own
investigations. Some of these State bodies are now defunct, and
some have been reconstituted and renamed. Additionally, a new State
investigatory body has been established. The amendments in
Schedule 2 flow from these events.
Amendments relating to the
Criminal Justice Commission, the Queensland Crime Commission and
the Crime and Misconduct Commission
The Crime and Misconduct Commission (CMC) was
formed on 1 January 2002 with the merger of the Criminal Justice
Commission (CJC) and the Queensland Crime Commission (QCC). The CJC
was created under the Criminal Justice Act 1989 (Qld) to
monitor, review, coordinate and initiate reform of the
administration of criminal justice in Queensland. The QCC was
established by the Crime Commission Act 1997 (Qld) to
investigate major and organised crime and criminal paedophilia.
Under the provisions of the Crime and Misconduct Act 2001
(Qld), the CMC will work to:
- combat and reduce the incidence of major crime in
- improve the integrity of the Queensland public sector, and
- reduce the incidence of misconduct in the Queensland public
There are a number of references to the CJC and
the QCC in the Principal Act. For instance, the CJC is an eligible
authority and its Commissioners are certifying officers for the
purposes of the Principal Act. References to the CJC, the QCC and
their enabling legislation are removed by the amendments and
replaced with references to the CMC and its enabling statute
(items 1-5, 7-14, 16, 18, 19, 21-23, 26-29, 31, 35, 37, 39,
41-43 and 45).
One effect of these amendments is to enable the
CMC, like its predecessor agencies, to be given information
lawfully obtained by intercepting agencies if that information
relates to a matter that could result in an investigation by the
CMC (item 45). The amendments also make the CMC,
like the CJC and the QCC, an eligible authority for the purposes of
the Principal Act. However, unless a declaration by the
Commonwealth Minister is in force, the CMC will not be able to
conduct telecommunications intercepts itself. No declarations were
in force for the CJC or the QCC.
Item 46 is a transitional
amendment that provides that anything done by the CJC or the QCC
under the Principal Act before the commencement of Schedule
2 is deemed to have been done by the Crime and Misconduct
Commission. The Explanatory Memorandum explains:
The provision is necessary as the merger
[between the CJC and QCC] took effect on 1 January 2002, and will
have the effect of deeming acts done by the predecessor Commissions
to be treated as though they had been done by the Crime and
Misconduct Commission. The provision is necessary to ensure that
intercepted information that was otherwise lawfully communicated to
the predecessor Commissions is not rendered unlawful by the
Amendments relating to the Royal
Commission into the New South Wales Police Service
On 13 May 1994, Supreme Court Justice James Wood
was appointed to head the Royal Commission into the New South Wales
Police Service (the Wood Royal Commission) and report into the
nature and extent of police corruption, the efficacy of the
Service's internal informers policy, the Service's promotion
system, the activities of its Professional Responsibility and
Internal Affairs Branches, its impartiality in investigating
prosecutions, and other associated matters relating to criminal
activity, neglect or violation of duty. The Wood Royal Commission
was given the ability to obtain lawfully intercepted information
obtained by intercepting agencies as a result of the passage of the
Royal Commission into the New South Wales Police Service
(Access to Information) Act 1994. The Wood Royal Commission
was wound up in 1997.
As the Wood Royal Commission no longer exists,
references to it are removed by amendments in Schedule
2 (items 6, 15, 20, 24, 30, 33, 34, 36, 38 and
Amendments relating to the Western
Australian Royal Commission into Police Corruption
In December 2001, Western Australian Premier, Dr
Geoff Gallop, announced that a Royal Commission into Police
Corruption would be established. The Commission will inquire into
and report on whether, since 1 January 1985, there has been corrupt
or criminal conduct by Western Australian police. The Commission is
due to report in August 2003.
The amendments in Schedule 2
add the WA Royal Commission to the list of eligible authorities in
the Principal Act (item 17) and insert other
references to the Commission in relation to prescribed
investigation (item 25) and relevant offence
(item 31). The amendments also enable the WA Royal
Commission to obtain information lawfully collected by other
intercepting agencies for the purposes of its investigations
(item 45). Before the WA Royal Commission could
intercept telecommunications itself, it would need to be the
subject of a Ministerial declaration under the Principal Act.
Item 32 inserts a definition of the Royal
Commission into Police Corruption into the Principal Act.
Subitems 46(2) and (3) empower
the Governor-General to make regulations dealing with any
transitional matters that might arise from the enactment of
Schedule 2. The Explanatory Memorandum states that
the amendments effected by item 46 are designed to
address unforeseen issues arising out of the merger of the
Queensland Crime Commission and Criminal Justice Commission .
Additionally, as stated above, they are designed to deal with any
other matter arising from the enactment of Schedule
In his Second Reading Speech for the Bill, the
The bill includes conduct involving terrorist
acts as offences in relation to which a telecommunications
interception warrant may be sought.
These provisions, and other measures taken by
the government, are designed to bolster our armoury in the war
against terrorism and deliver on our commitment to enhance our
ability to meet the challenges of the new terrorist
The inclusion of terrorist offences as
warrantable offences in their own right properly acknowledges the
seriousness of all terrorist offences and will assist law
enforcement agencies to avail themselves of this investigative tool
in their investigations into such activity.(49)
The Bill does not refer to terrorist offences .
Instead, class 1 offences in the Principal Act will be defined to
include an offence constituted by conduct involving an act or acts
of terrorism . The reason, according to the Explanatory Memorandum,
is to enable intercepting agencies to seek interception warrants in
connection with the investigation of terrorism offences, however
described in relevant legislation . It is arguably unclear exactly
which offences in Commonwealth, State or Territory law might be
encompassed by this definition and which, in consequence, might be
subject to investigation via the use of an interception
- 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 7.
- Section 6.
- Section 5.
- Sections 9 and 9A.
- Sections 11A-11C.
- Section 10.
- Sections 45, 45A, 46, 46A.
- Section 5.
- Section 5D.
- Sections 9, 9A, and 11A 11C.
- Section 39. See the definition of agency in section 5.
- For the purposes of the Principal Act the expression State
includes the Northern Territory (section 5).
- Sections 34 and 35. Section 35 sets out the prerequisites for a
- Telecommunications (Interception) Act 1979. Report for the
Year Ending 30 June 2000. A declaration was made under section
34 in relation to the Anti-Corruption Commission of Western
Australia on 24 September 2001.
- Section 36.
- Section 68.
- Section 42.
- Sections 45, 45A, 46, 46A and 48.
- The exemption is contained in section 67.
- Sections 63 and 77. The exemptions are contained in sections
63A, 74, 75, 75A, 76 and 76A.
- Section 5B.
- Section 5.
- Section 5.
- Relevant proceeding is defined in section 6L and includes a
prosecution (or forfeiture proceedings or proceedings to recover a
pecuniary penalty) for a prescribed offence; extradition
proceedings relating to a prescribed offence; police disciplinary
proceedings; and proceedings relating to misbehaviour or improper
conduct by a Commonwealth or State officer.
- Section 66.
- Section 68.
- Section 70.
- Section 68.
- Section 68.
- Sections 56 and 57.
- Section 60.
- Section 61A.
- Section 61.
- Introduced on 13 March 2002. The original Bill [the Security
Legislation Amendment (Terrorism) Bill 2002], which was introduced
on 12 March 2002, was withdrawn on 13 March 2002 and the [No.2]
Bill was substituted. The reason was that the Office of
Parliamentary Counsel had drawn the Government s attention to a
discrepancy between the title of the original Bill and the title
referred to in the notice of presentation given by the
Attorney-General. This discrepancy meant that the Bill s
introduction was inconsistent with House of Representatives
Standing Orders. The withdrawal and re-introduction were designed
to address this problem. See Mr Peter Slipper MP, House of
Representatives, Hansard, 13 March 2002, pp. 1138 9.
- Introduced into the House of Representatives on 21 March 2002.
- As stated above, the Anti-hoax Bill has received Royal Assent.
- Attorney-General, News Release, National Move to
Combat Terror , 7 April 2002. The Attorney s News Release can be
found at: http://www.ag.gov.au/aghome/agnews/2002newsag/37_02.htm
(accessed 15 April 2002).
- Explanatory Memorandum, p. 4.
- Specifically, the offences are the production, publication,
possession, supply or sale of, or other dealing in, child
pornography; and consenting to or procuring the employment of a
child, or employing a child, in connection with child pornography.
- Note that there are some other existing class 2 offences that
are qualified by the word, serious , including serious fraud and
serious personal injury .
- The Hon. Daryl Williams, AM QC MP, Second Reading Speech on the
Telecommunications Interception Legislation Amendment Bill 2002,
House of Representatives, Hansard, 12 March 2002, p. 977.
- Explanatory Memorandum, p. 7.
- Section 67 and section 5.
- Explanatory Memorandum, p. 5.
(accessed 27 March 2002).
- Explanatory Memorandum, p. 22.
- House of Representatives, Hansard, 12 March 2002, p.
- In contrast to terrorism , other class 1 offences might be seen
as more clearly defined. For example, the definition of a class 1
offence in section 5 of the Principal Act refers to:
- murder, or an offence of a kind equivalent to murder
- kidnapping, or an offence of a kind equivalent to
- a narcotics offence
- offences constituted by acts such as aiding and abetting or
conspiring to commit the primary offences listed above.
Further, an application for an interception
warrant for a class 1 offence in contrast with those for class 2
offences, and presumably because of the very serious conduct
encompassed by those offences, needs to satisfy fewer statutory
criteria (compare, for instance, paragraph 45(e) in relation to a
telecommunications service warrant for a class 1 offence with
subsection 46(2) in relation to a telecommunications service
warrant for a class 2 offence). In other words, does the wording in
item 7 enable an undefined class of offences to be
the subject of an application for an interception warrant which is
tested against less stringent criteria than those available for
class 2 offences?
Jennifer Norberry and Katrine Del Villar
15 April 2002
Bills Digest Service
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