Bills Digest no. 3 2008–09
Telecommunications Interception Legislation Amendment
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
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House: House of Representatives
Sections 1 to 3 will
commence on the day on which the Act receives the Royal Assent.
Schedule 1 will commence on the day after the Act receives the
Royal Assent. Schedule 2 items 1 to 11, 13, 21 and 25 to 27 will
commence on the day after the Act receives the Royal Assent.
Schedule 2 items 12, 14 to 20 and 22 will commence on the later of:
(a) the start of the day after this Act receives the Royal Assent;
and (b) immediately after the commencement of section 5 of the
Police Integrity Act 2008 of Victoria. Items 12,14 to
20 and 22 will not commence at all if section 5 of the Police
Integrity Act 2008 of Victoria does not commence. Schedule 2
items 23 and 24 will commence on the day on which this Act receives
the Royal Assent.
relevant links to the Bill, Explanatory Memorandum and second
reading speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills.
When Bills have been passed they can be found at ComLaw, which is
purpose of the Telecommunications Interception Legislation
Amendment Bill 2008 (the Bill) is to amend the
Telecommunications (Interception and Access) Act 1979 (the
TIA Act) and Surveillance Devices Act 2004 (the
Surveillance Devices Act) to ensure that officeholders can validly
authorise others to act on their behalf in performing certain
The Bill proposes a number of other minor
technical amendments. The amendments will tidy the
telecommunications interception and access regime so that it is
current and accurately reflects the status of related regimes.
The explanatory memorandum notes that the need
for the amendments is based on the Hong Kong Bank of Australia
Ltd v Australian Securities Commission (1992) 108 ALR case
(the Hong Kong Bank case).
The Hong Kong Bank case considered whether a
decision by the Australian Securities Commission to authorise a
person, as referred to in section 597(1) of the Corporations law,
was a valid authorisation and a reviewable decision from the
Administrative Appeals Tribunal (the Tribunal). The Federal Court
in that case decided that the Tribunal did not have jurisdiction to
review the validity of the authorisation because the decision in
question was not made under the Corporations Law (which would
normally attract the jurisdiction of the Tribunal). The Court
suggested that the authority came from the Australian
Securities Commission Act (1989) and thus any
challenge in the Tribunal to the authorisation failed. The court held that a
provision allowing an authorised person to perform certain
functions does not implicitly empower a person to be an authorised
The Explanatory Memorandum notes that the
Attorney-General s Department obtained legal advice indicating that
the definitions in the TI Act and the SDA are distinguishable from
those in the Hong Kong Bank case. The Explanatory
Memorandum notes that there is still some risk that a court would
find that the relevant existing subsections of the Acts do not
confer power on designated office holders to make
The intention of the amendments is to remove
any uncertainties that may arise in a similar way to the
uncertainty of implied authorisations that were found in the Hong
Kong Bank case.
The drafting issue came to light and was noted
in Drafting Direction No. 3.4 (May 2006) by the Office of
Parliamentary Council (OPC). This Direction notes that legislative drafters need to
be careful about assuming that powers can safely be conferred by
implication and should consider whether an express conferral of
power would be more appropriate. 
In essence, the amendments will expressly
confer power on office holders to make authorisations for the
purposes of these Acts.
Given that the amendments do not create or
expand powers of the authorised persons, the bill is unlikely to
have any financial impact. The explanatory memorandum notes that
the amendments made by this Bill will have no financial impact.
Items 1 to 7 will amend the
Surveillance Devices Act 2004 (SD Act) by identifying a
person who is specifically authorised under proposed sections 6A or
6B of the SD Act as an appropriate authorising officer or law
enforcement officer .
Item 8 will insert
new sections 6A and 6B at the end of section 6 of
the SD Act. These sections will confer express powers on designated
officers to authorise other persons to act on their behalf for the
purposes of the SD Act. These sections will ensure that
authorisations are valid and that persons authorised under the SD
Act to act as an appropriate authorising officer or a law
enforcement officer can legally exercise their prescribed
Item 9 to 10 will ensure that
actions previously taken by persons authorised under subsection
6(1) of the SD are still valid. Items 9 and 10 treat previous
authorisations as if they had been made under the express
authorisation powers inserted by Item 8 of this Bill. This would
appear to be a retrospective application of Item 8 but would be
unlikely to have an adverse effect on individuals.
Items 1 to 11 identify a
person who is specifically authorised under new sections 5AC, 5AD
or 5AE of the TIA Act as inserted by item 21 of this Bill as being
a certifying officer , certifying person or member of the staff of
a Commonwealth Royal Commission .
Item 13 is not commented on
in the explanatory memorandum. That item will amend subsection
5(1)(b) of the definition of member of staff of a Commonwealth
Royal Commission to allow that person to be authorised under
proposed section 5AE.
Item 21 inserts new sections
5AC, 5AD and 5AE at the end of section 5AB of the TIA Act. These
sections will confer express powers on designated officers to
authorise another person to act on their behalf for the purposes of
the TIA Act. These provisions will ensure that persons authorised
under the TIA Act to act as a certifying officer , certifying
person , or member of the staff of a Commonwealth Royal Commission
, can exercise their prescribed functions without any doubt as to
the validity of their authorisations.
Items 25 to 27 will confirm
that actions previously taken by persons authorised under
subsection 5(1) of the TIA are still valid. Items 25 to
27 treat previous authorisations as if they had been made
under the express authorisation powers inserted by Item
21 of this Bill. This would appear to be a retrospective
application of Item 21 but would be unlikely to
have an adverse effect on individuals.
The Victorian Government has introduced
legislation to place the Office of Police Integrity as a standalone
authority. The Bill went to the Victorian Scrutiny of Acts and
Regulations Committee in June 2008 and a transcript of proceedings
can be found on the Victorian Parliament website. At the time of writing this
Digest, the Committee has not reported on the Bill.
Items 12 and 14 to 20 replace
references in subsection 5(1) of the TIA Act to the Police
Regulation Act with the new legislation so as to preserve the
Office s powers and functions under the TIA Act. These provisions
would only come into effect if the Victorian Act is passed.
Item 22 makes a consequential
amendment to subparagraph 39(2)(ea)(ii) as a result of item
15 of the Bill which identifies the Office of Police
Integrity as being the Office of Police Integrity established by
the Police Integrity Act 2008 .
Item 23 updates references to
sections 45 and 45A of the TIA Act which have been repealed. This
ensures that service carriers are not required to report against
The Hong Kong Bank case was decided
in 1992 and there has been a considerable lag since that decision
and the Drafting Direction of 2006. It is not clear why the lag has
occurred. The provisions came to the attention of the drafters at
OPC when preparing a prior Bill and the Attorney-General s
Department has subsequently moved to eliminate the risk that OPC
identified. There is no suggestion that the amendments are
addressing a particular case that has arisen by an implied
authorisation under the TIA Act.
There is nothing controversial or of
particular concern in this Bill. However, there is no indication
whether the uncertainties that are evidenced here exist in other
21 August 2008
Bills Digest Service
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