Bills Digest no. 53 2005–06
Telecommunications (Interception) Amendment (Stored Communications
and Other Measures) Bill 2005
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)
Amendment (Stored Communications and Other Measures) Bill 2005
Date
Introduced: 14 September 2005
House: House
of Representatives
Portfolio: Attorney-General
Commencement: Royal
Assent, except for the provisions affecting the Victorian Office of Police
Integrity which will commence on a day to be fixed by Proclamation.
The purpose of this Bill is to:
-
extend for six months provisions allowing access to ‘stored communications’
without a warrant under the Telecommunications (Interception) Act
1979 (Interception Act)
-
add the Victorian Office of Police Integrity to the list of ‘eligible
authorities’ able to obtain telecommunications interception warrants
for law enforcement purposes, and
-
allow various state bodies that are already ‘eligible authorities’
to make greater use of lawfully obtained intercepted material.
The Telecommunications (Interception) Amendment (Stored Communications)
Act 2004, assented to on 14 December 2004, excluded ‘stored communications’
(electronic messages located on a computer, internet server or other equipment)
from controls on interception of communications in the Telecommunications
(Interception) Act 1979 (‘the TI Act’) for a period of 12 months while
a review of the TI Act was conducted. In his second reading speech for
the current Bill, the Attorney-General tabled a copy of the review — conducted
by Tony Blunn AO and completed in August 2005 — stating that the Government
needed additional time to fully consider its recommendations.
A discussion of the exclusion of stored communications from the interception
warrant regime in the TI Act is contained in Bills Digest
No. 153 2003-04.(1) The Blunn
Review is available on the Attorney-General’s website.(2)
The Review recommends that comprehensive and over-riding legislation dealing
with access to telecommunications data for security and law enforcement
purposes be established.
In September 2005 the Commonwealth and Victorian governments resolved
a dispute over access by the Victorian Office of Police Integrity to telecommunications
interceptions, including phone tap powers. The Office of Police Integrity
was established in November 2004 by the Victorian Government to combat
police corruption and serious misconduct. The Victorian Ombudsman, George
Brouwer, was appointed to run the new body at the same time as continuing
in his role as Ombudsman. The Federal Government refused to grant the
new body telecommunications interception powers, arguing that Mr Brouwer
would have a conflict of interest since one of his functions as Ombudsman
is to oversee and investigate complaints about use of such powers.(3)
To resolve the dispute, Victoria has agreed to enact legislation to give
a ‘special monitor’ authority over the Ombudsman. The current Bill provides
interception powers to the Office of Police Integrity subject to enactment
of this legislation. If the Victorian Government has not enacted this
legislation within 12 months from the time the current Bill receives assent,
the provisions granting interception powers to the Office of Police Integrity
will automatically be repealed.
Section 67 of the TI Act allows use of intercepted information only for
‘permitted purposes’. These ‘permitted purposes’ are set out in detail
in section 5 and vary between the different Commonwealth and state agencies
and bodies. For the NSW Independent Commission against Corruption (ICAC),
for example, ‘permitted purposes’ include the investigation of serious
criminal offences but there is no specific authority to use intercepts
to investigate ‘corrupt conduct’. The Bill expands the range of ‘permitted
purposes’ for which information from telecommunications interceptions
can be used by ICAC, the Inspector of ICAC, the Inspector of the NSW Police
Integrity Commission, and the Queensland Crime and Misconduct Commission.
Schedule 1 Part 1 extends for a further six months the exemption
of stored communications from the prohibition against interception of
telecommunications without an interception warrant in section 7(1) of
the TI Act and the restrictions on use and disclosure of intercepted material
in Part VII of the Act. This means the exemption will continue until
June 2006. The explanatory memorandum notes that ‘this will maintain
the status quo pending consideration of the recommendations contained
in the Blunn Review into the regulation of access to stored communications.’(4)
Part 2 makes the Victorian Office of Police Integrity an ‘eligible
authority’ under subsection 5(1) of the TI Act, allowing it to receive
and use lawfully obtained intercepted material to investigate police misconduct.
The explanatory memorandum notes that:
The amendments will only commence if the oversight arrangements
for the Director, Police Integrity are appropriately amended within 12
months following Royal Assent. If the oversight arrangements are not changed
to the satisfaction of the Australian Government, then the provisions
will not be proclaimed and they will not commence.(5)
Part 3 enables a number of State anti-corruption agencies
to make greater use of lawfully obtained intercepted material under the
TI Act. Items 25 and 26 provide that a ‘permitted purpose’
for use of lawfully obtained intercepted information under subsection
5(1) of the TI Act will include:
-
in the case of ICAC, investigating whether corrupt conduct may
have occurred
-
in the case of the Inspector of ICAC, dealing with (by reports
and recommendations) complaints of abuse of power, impropriety or
maladministration by ICAC or its officers
-
in the case of the Inspector of the NSW Police Integrity Commission,
dealing with (by reports and recommendations) complaints of abuse
of power, impropriety or other misconduct by the Commission or its
officers, and
-
in the case of the Queensland Crime and Misconduct Commission,
investigating whether misconduct within the meaning of the Queensland
Crime and Misconduct Act 2001 may have occurred.
Endnotes
-
http://www.aph.gov.au/library/pubs/bd/2003-04/04bd153.pdf.
-
http://www.ag.gov.au/agd/WWW/agdHome.nsf/Page/Publications_2005_Report_of_
the_Review_of_the_Regulation_of_Access_to_Communications_-_August_2005
-
Rachel Kleinman, ‘Deal ends phone tap stand-off’, The Age,
15.9.05, p. 6.
-
explanatory memorandum, p. 4.
-
ibid., p. 5.
Peter Prince
7 October 2005
Bills Digest Service
Information and Research Services
This paper has been prepared to support the work of the Australian Parliament
using information available at the time of production. The views expressed
do not reflect an official position of the Information and Research Service,
nor do they constitute professional legal opinion.
IRS staff are available to discuss the paper's contents
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ISSN 1328-8091
© Commonwealth of Australia 2005
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Published by the Parliamentary Library, 2005.
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