Bills Digest No. 44 2003-04
Telecommunications Interception and Other
Legislation Amendment Bill 2003
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 and
Other Legislation Amendment Bill 2003
18 September 2003
House: House of Representatives
Schedule 1 commences on a
date to be fixed by Proclamation, but will be repealed if this does
not occur within 12 months of Royal Assent. Schedule 2 commences on
the Telecommunications (Interception) Act 1979 to
include slavery, sexual servitude, deceptive recruiting and
aggravated people smuggling as offences in relation to which a
telecommunications interception warrant may be sought, and
the Telecommunications (Interception) Act, the Financial
Transactions Reports Act 1988 and the Crimes Act 1914
to provide the proposed new Western Australian Corruption and Crime
Commission with relevant law enforcement powers.
The Telecommunications (Interception) Act
prohibits interception of 'a communication passing over a
telecommunications system' except where this is necessary for the
operation or maintenance of such a system or pursuant to an
Interception warrants can be issued for
national security or law enforcement purposes.
Law enforcement warrants can be obtained by
Federal and State police and other government crime investigation
bodies. Applications for such warrants must be made to an 'eligible
judge' or nominated member of the Administrative Appeals
'Telecommunications service warrants' relate
to a particular identified telecommunications
service.(3) 'Named person warrants apply to any
telecommunication service that is used or likely to be used by a
An application for either type of interception
warrant can include a request that the warrant authorise entry on
to specified premises.
warrants can only be issued for the investigation of 'class 1' and
'class 2' offences. Class 1 offences include murder, acts of
terrorism, kidnapping and narcotics offences.(5) Class 2
offences include offences punishable by imprisonment for life or a
period of at least 7 years where the offender s conduct involves
loss of life, serious personal injury, drug trafficking or serious
fraud, bribery or corruption etc.(6)
either a 'class 1' or 'class 2' interception warrant, the judge or
AAT member must consider whether sufficient information could be
obtained by alternative methods. In the case of an interception
warrant relating to a class 2 offence, however, the judge or AAT
member must also take into account the extent to which the privacy
of any person or persons would be interfered with, as well as the
gravity of the conduct constituting the offence being
information must be supplied before a warrant can authorise entry
on to premises.(8)
The following crime
investigation bodies can apply for and execute interception
warrants for the purpose of law
Australian Federal Police,
the Australian Crime Commission, and
an eligible authority (10) of a State or the Northern
Territory which is declared to be an 'agency' by the
Attorney-General.(11) As at 30 June 2002, declarations
were in force for the Victorian, NSW, South Australian and Western
Australian police services; the New South Wales Crime Commission,
Independent Commission Against Corruption and Police Integrity
Commission; and the Western Australian Anti-Corruption
Declarations by the Attorney-General are
disallowable instruments under the Telecommunications
'eligible authorities' that are not declared 'agencies' may have
access to intercepted information obtained by 'agencies' where this
is relevant to their investigations.
The Bill adds the offence of 'aggravated
people smuggling' to the list of 'class 2 offences' for which crime
investigation agencies can obtain an interception warrant in
accordance with the Telecommunications (Interception) Act.
The offences of 'people smuggling' and
'aggravated people smuggling' were created by the Crimes
Legislation Amendment (People Smuggling, Firearms Trafficking And
Other Measures) Act 2002, the relevant parts of which came
into force in January 2003.
The new offences apply to the smuggling of
people into a foreign country (whether or not via Australia),
whereas previous offences of this type in the Migration Act
1958 applied only to the smuggling of people into
An offence of 'people smuggling' is committed
when a person organises the illegal entry of another person into a
foreign country for a benefit. The maximum penalty is 10 years
imprisonment or 1,000 penalty units, or both.(14)
The 'aggravated offence of people smuggling'
is committed where a person commits an offence of people smuggling
intention that the victim of the people smuggling operation will be
exploited after entry to the foreign country
subjects the victim to cruel, inhuman or degrading treatment,
results in a
danger of death or serious harm to the victim.
The maximum penalty for this aggravated
offence is 20 years imprisonment or a fine of 2,000 penalty units,
For full background on the new people
smuggling offences, see Bills
Digest No. 84 of 2002-03.(16)
The Bill also provides that offences under
Division 270 of the Criminal Code Act 1995 are 'class 2
offences' for the purpose of the Telecommunications (Interception)
The Criminal Code Amendment (Slavery And
Sexual Servitude) Act 1999 (which came into force in September
1999) inserted Chapter 8 ('Offences against humanity') into the
Criminal Code. Division 270 of Chapter 8 added the offences of
'slavery', 'sexual servitude' and 'deceptive recruiting for sexual
services' to the Code.
The offence of 'slavery' occurs when a person
intentionally possesses a slave or engages in slave trading
irrespective of whether the person engages in that conduct inside
or outside Australia. The maximum penalty is 25 years imprisonment.
Slave trading is defined to include capturing a person in order to
make them a slave, purchasing or selling slaves, commercial
transactions involving slaves and directing or financing such
Sexual servitude occurs when a person provides
sexual services and, because of force or threats, is not free to
cease providing those services or leave the place where they
provide those services. Threat includes a threat to cause a person
s deportation. A person who intentionally or recklessly causes a
person to enter or remain in sexual servitude is guilty of an
offence. The maximum penalty in the case of an aggravated offence
is 19 years imprisonment. In any other case the maximum penalty is
15 years imprisonment.(18)
The offence of 'deceptive recruiting for
sexual services' is committed if a person deceives another person
that an engagement will involve the provision of sexual services.
The penalty is a maximum of 9 years imprisonment in the case of an
aggravated offence and 7 years imprisonment in any other
An offence will be an aggravated offence if
committed against a person who is under 18 years of
For full background on offences under Division
270 of the Criminal Code, see Bills
Digest No. 167 of 1998-99.(21)
The latest annual report on the
Telecommunications (Interception) Act states that 2514 interception
warrants were issued to law enforcement agencies during 2001-02,
representing an increase of 17 per cent over the previous
The annual report noted that there was a 48
per cent increase in the number of prosecutions commenced and a 50
per cent increase in the number of convictions obtained on the
basis of lawfully obtained information.(23)
Commenting on these figures, the
Attorney-General, the Hon. Daryl Williams MP, stated in June 2003
The report shows that the use of
telecommunications interception continues to be an important
investigative tool which is demonstrating proven results. The
figures contained in the report show that access to this tool is
vital for law enforcement particularly at a time of such rapid
technological change and advancement.(24)
In contrast, the Sunday Tasmanian
Australians are fast becoming the most spied-on
people in the Western world. Mail interceptions and telephone taps
have soared The 2514 court warrants for phone taps last financial
year almost double the number issued in the US represent a tenfold
increase in the past decade The warrants apply to hundreds of
thousands of individual phone calls and eavesdropping on thousands
In relation to the previous annual report on
the Telecommunications (Interception) Act, the then Shadow Minister
for Justice and Customs, Daryl Melham MP, stated in September 2002
that 'It is a striking fact that Australian law enforcement
agencies are resorting to telecommunications interception much more
than their American counterparts'. Given the disparity in
population between the two countries, 'this amounts to a per capita
rate of telephone interception in Australia more than 20 times that
in the United States.'(26)
For further background on telecommunications
interception, see Bills
Digest No. 121 of 2001-02.(27)
Western Australia's Corruption and Crime
Commission Act 2003(28) will create a new Corruption and
Crime Commission ('CCC'). Formation of the CCC was
a key recommendation of the WA Royal Commission into Police
Corruption in its
interim report(29) presented in December 2002.
The CCC will be based on Queensland's Crime
and Misconduct Commission. It will replace the WA Anti-Corruption
Commission ('ACC'). The ACC was established in
1996 to investigate public sector corruption in Western Australia
but was criticised for lacking the power to effectively tackle this
issue. According to its chairman, the ACC 'was set up to
Commenting on the creation of the CCC, the
West Australian noted in February 2003 that:
The ill-conceived political stunt which became
WA's Anti-Corruption Commission is almost at an end. No one should
mourn its passing. Instead, there should be relief that at last WA
is being promised an organisation with real clout, able to root out
corrupt police, public servants and organised
The CCC 'will, in effect, be a standing royal
commission'.(32) Indeed, it is intended that it have all
of the functions of the Police Royal Commission.(33) It
will have power to gather information, obtain documents and other
evidence, summon witnesses, enter and search public premises,
conduct integrity tests, carry out covert operations, use assumed
identities and compel witnesses to give information. It will be
able to conduct open hearings if this is in the public
Attempts to obstruct CCC hearings such as
interfering with witnesses will attract punishment of up to five
years gaol and a $100,000 fine.(34)
The Corruption and Crime Commission Act also
creates the position of Parliamentary Inspector, whose function
will be to audit the operations of the CCC and investigate and
report allegations of misconduct by the CCC or its
Schedule 1 of the current
Bill before the Federal Parliament will amend the following
the Crimes Act 1914 to allow the CCC to authorise use
of assumed identities
the Financial Transaction Reports Act 1988 to give the
CCC access to financial transaction reports from the Australian
Transaction Reports and Analysis Centre
- the Telecommunications (Interception) Act 1979 to
enable the CCC and the Parliamentary Inspector to receive
intercepted information relevant to their functions, and to allow
the CCC to apply for and execute interception warrants in its own
According to the Second Reading Speech for the
Bill, these amendments will provide the CCC with powers consistent
with those of the ACC.(36)
The West Australian reported in April
2003 that after being given 'bugging powers' in September 2001, the
ACC executed 45 telephone interception warrants in the second half
of 2002, involving the interception of 61,599 phone calls.
The Federal Government expects that the CCC
will be declared an 'agency' under the Telecommunications
(Interception) Act allowing it to apply for and execute
interception warrants. The Western Australian Government must apply
for 'agency' status on the CCC's behalf and satisfy the
Attorney-General that the CCC has appropriate accountability and
record-keeping arrangements in place.(38)
It is not anticipated that the Parliamentary
Inspector will be declared an interception agency in its own right.
Instead it will 'receive intercepted information in connection with
its functions in relation to misconduct.'(39)
Schedule 2 Item
1 amends the definition of 'class 2 offence' in
subsection 5D(3) of the Telecommunications
(Interception) Act to include offences against section
73.2 and Division 270 of the
This amendment will allow law enforcement
bodies declared as 'agencies' under the Telecommunications
(Interception) Act to apply for and execute interception warrants
for investigating the new Commonwealth offences of 'aggravated
people smuggling', 'slavery', 'sexual servitude' and 'deceptive
recruiting for sexual services.'
Schedule 1 of the Bill amends
various Commonwealth Acts to confer relevant powers on the CCC and
the Parliamentary Inspector.
Since the Western Australian Parliament is
still considering the final form of the CCC and its oversight by
the Parliamentary Inspector,(40) Item 2
of the table in clause 2 proposes that
Schedule 1 should not commence until a day fixed
by Proclamation. As the Explanatory Memorandum to the Bill
Commencement of the amendments in Schedule 1 by
proclamation will ensure that those provisions providing for the
Commission and Parliamentary Inspector do not commence until those
entities are formally constituted.(41)
Item 2 of the table further
provides that Schedule 1 will automatically be
repealed if the CCC and the Parliamentary Inspector are not
formally created within 12 months after the Bill receives Royal
Item 1 of Schedule 1 includes
the CCC in the definition of 'State or Territory participating
agency' in subsection 15XA(1) of the
Crimes Act. This means that officers of the CCC
will be able in accordance with section 15XH of
the Crimes Act to authorise persons to use an assumed identity or
to acquire evidence of an assumed identity from any Commonwealth
agency. Persons authorised to engage in such activities will
receive indemnity and protection from prosecution under
sections 15XD and 15XC of the Crimes Act.
Items 2 and 3 of Schedule 1
amend section 27 of the Financial
Transaction Reports Act to enable the CCC and its officers
to receive 'FTR information'. 'FTR information' is the range of
information on financial transactions obtained by the Director of
AUSTRAC under Part II of the Financial Transaction Reports Act.
Schedule 1 amends the
Telecommunications (Interception) Act to enable
the CCC and the Parliamentary Inspector to receive information
obtained from telecommunications interceptions.
Item 8 includes the CCC and
the Parliamentary Inspector within the definition of 'eligible
authority' in subsection 5(1). This brings the two
bodies within the scope of Part VII of the Act
covering use of information acquired from telecommunications
Item 13 amends the definition
of 'permitted purpose' for which interception information can be
used in subsection 5(1) of the Act to include
investigations by the CCC and the Parliamentary Inspector into
'misconduct'. This means the two bodies will be able to use
interception information not only to investigate serious criminal
offences but also to enquire into 'misconduct' (as defined in the
Corruption and Crime Commission Bill)(42) which may not
constitute a serious offence. In addition, under proposed
paragraph 5(1)(g), the CCC will also be permitted to use
interception information to investigate whether 'misconduct is or
may be about to occur, or is likely to occur'.
Item 16 amends
section 5B to enable lawfully obtained
interception information to be used as evidence in proceedings of
the CCC and Parliamentary Commissioner.
Item 17 amends
paragraph 6A(1)(c) by adding the CCC and the
Parliamentary Inspector to the list of agencies permitted to use
interception information for the investigation of criminal
Item 20 amends
section 68 to allow an agency with interception
information relating to matters that may give rise to
investigations by the CCC or the Parliamentary Inspector to pass
such information to those bodies.
Schedule 1 also amends the
Telecommunications (Interception) Act to enable
the CCC to apply for and execute interception warrants in its own
Item 19 amends
paragraph 39(2) of the Act to enable an officer of
the CCC (once that body is declared an interception 'agency') to
apply to an eligible judge or nominated member of the
Administrative Appeals Tribunal for an interception warrant.
Item 4 adds the Commissioner
and senior executive officer(s) of the CCC to the definition of
'certifying officer' in subsection 5(1) of the
Act, enabling them to perform certain functions under the Act
including revoking interception warrants(43) and
providing evidentiary certificates as to actions taken in relation
The amendments proposed in the
Bill to the definition of 'class 2 offences' in
the Telecommunications (Interception) Act will allow interception
warrants to be obtained for investigation of new offences
(aggravated people smuggling, slavery, sexual servitude and
deceptive recruiting for sexual services) recently included in the
However, by specifying offences against
the Commonwealth Criminal Code, the
Bill may prevent interception warrants being
obtained for investigation of similar State and
Sexual servitude and deceptive
recruiting for sexual services only contravene Commonwealth law
where there is an overseas element to the offence.(45)
State and Territory legislation must be used to prosecute offenders
where all the conduct occurs within
Sexual servitude and related offences
are covered by legislation in South
Australia, ACT, NSW and the Northern
Territory.(46) The amendments proposed in
the current Bill would not permit State
and Territory police forces or other agencies to obtain an
interception warrant to investigate such offences.
Under the proposed legislation the CCC
can obtain an interception warrant only for investigation of 'class
1' or 'class 2' offences, but will be able to use interception
information from such warrants (or forwarded by other agencies) for
investigating lesser offences, including 'misconduct'.
This allows broader use of interception
information than the ACC is permitted,(47) but is
consistent with powers given to other Australian crime
investigation bodies.(48) The Australian Federal Police,
for example, can use interception information for 'an investigation
of, or an inquiry into, alleged misbehaviour, or alleged improper
conduct, of an officer of the Commonwealth'.(49) State
police forces are given a similar power.
However the CCC will also be permitted
to use interception information to investigate whether 'misconduct
is or may be about to occur, or is likely to
occur'. This suggests use of interception information for a
monitoring function that appears to go further than the existing
power of State and Federal police forces to use such information in
relation to alleged misbehaviour or improper
Telecommunications (Interception) Act section 7.
Telecommunications (Interception) Act sections 6D and 6DA.
Telecommunications (Interception) Act sections 9, 11A, 45,
Telecommunications (Interception) Act sections 9A, 11B,
Telecommunications (Interception) Act section 5.
Telecommunications (Interception) Act section 5D.
Telecommunications (Interception) Act sections 46 and 46A.
Telecommunications (Interception) Act section 48.
Telecommunications (Interception) Act Section 39. See the
definition of agency in section 5.
Section 5 of the Telecommunications (Interception) Act currently
defines 'eligible authority' as the police forces of each of the
States and of the Northern Territory; the New South Wales
Independent Commission Against Corruption, Crime Commission, Police
Integrity Commission and Inspector of the Integrity Commission; the
Western Australian Anti-Corruption Commission and the Royal
Commission into Police Corruption; and the Queensland Crime and
Telecommunications (Interception) Act sections 34 and 35. Section 35 sets out the
prerequisites for a Ministerial declaration.
Act 1979 Report for the Year Ending 30 June 2002, p.
Criminal Code Act 1995, section 73.1.
Criminal Code section 73.2.
Criminal Code sections 270.1 270.3.
Criminal Code sections 270.4 270.6.
Criminal Code section 270.7.
Criminal Code section 270.8.
Telecommunications (Interception) Act 1979 Report for the
year ending 30 June 2002, p. 13.
Telecommunications (Interception) Act 1979 Report
for the year ending 30 June 2002, p. 30.
Hon. Daryl Williams AM QC MP, Press Release, 17 June 2003.
Sunday Tasmanian, 29 June 2003, p. 2.
Daryl Melham MP, News Release, 'More Telephone Taps in Australia
than the United States', 15 September 2002.
Western Australia's Corruption and Crime Commission Act was
assented to in interim form on 3 July 2003. Passage of the interim
legislation was necessary to ensure continued statutory coverage
for staff of the Royal Commission into Police Corruption. Both the
interim Act and an amending bill containing substantive provisions
have been referred to the WA Parliament's Standing Committee on
Legislation for review. See WA Parliament's
OpenView&Start=1& Count=120&Expand=1; and WA
Legislative Assembly Hansard, 26 June 2003, pp. 9454-56.
The West Australian, 27 February 2003, p. 18.
Corruption and Crime Commission Act, section 19.
Corruption and Crime Commission Act, Part 6.
Corruption and Crime Commission Act, Part 13.
Hon. Daryl Williams AM QC MP, Second Reading Speech, House
Hansard, 18 September 2003, p. 19634.
The West Australian, 10 April 2003, p. 6.
Hon. Daryl Williams AM QC MP, Second Reading Speech, House
Hansard, 18 September 2003, p. 19634.
Explanatory Memorandum, p. 4.
See note 26.
Explanatory Memorandum, p. 2.
Section 4 of the draft Corruption and Crime Commission Bill
'Misconduct occurs if
a public officer corruptly acts or corruptly fails to act in the
performance of the functions of the public officer s office or
a public officer corruptly takes advantage of the public officer s
office or employment as a public officer to obtain a benefit for
himself or herself or for another person;
a public officer whilst acting or purporting to act in his or her
official capacity, commits an offence punishable by 2 or more years
public officer engages in conduct that
adversely affects, or could adversely affect, directly or
indirectly, the honest or impartial performance of the functions of
a public body or public officer;
(ii) constitutes or involves the performance
of his or her functions in a manner that is not honest or
(iii) constitutes or involves a breach of the
trust placed in the public officer by reason of his or her office
or employment as a public officer; or
(iv) involves the misuse of information or
material that the public officer has acquired in connection with
his or her functions as a public officer, whether the misuse is for
the benefit of the public officer or another person, and
constitutes or could constitute
(v) an offence against the Statutory
Corporations (Liability of Directors) Act 1996 or any other written
(vi) a disciplinary offence providing
reasonable grounds for the termination of a person s office or
employment as a public service officer under the Public Sector
Management Act 1994 (whether or not the public officer to whom the
allegation relates is a public service officer or is a person whose
office or employment could be terminated on the grounds of such
(e) a public officer, whilst acting or
purporting to act in his or her official capacity, engages in
reviewable police action.
Telecommunications (Interception) Act section 57.
Telecommunications (Interception) Act section 61.
Criminal Code section 270.5.
Criminal Law Consolidation Act 1935 (SA) sections 66
and 67; Crimes Act (NSW) Part 3 Division 10A; Crimes
Act 1900 (ACT) Part 5; Criminal Code of the Northern
Territory of Australia (NT) Schedule 1, Division 6A. In
addition, the WA Criminal Code Amendment Bill 2003 will amend the
WA Criminal Code to create sexual servitude offences.
The ACC is limited to using interception information for
investigating 'alleged corrupt conduct, criminal conduct, criminal
involvement or serious improper conduct'. Telecommunications
(Interception) Act section 5(1)
Telecommunications (Interception) Act section 5 (1).
3 October 2003
Bills Digest Service
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