Bills Digest no. 85 2008–09
Telecommunications Interception Legislation Amendment
Bill (No.2) 2008
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
Financial implications
Main provisions
Concluding comments
Contact officer & copyright details
Passage history
Date
introduced: 3 December
2008
House: House of Representatives
Portfolio: Attorney-General
Commencement:
Schedule 1 will commence
on the later of Royal Assent and the commencement of the required
Queensland legislation. Schedule 2 will commence on the day after
Royal Assent.
Links: The
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
at http://www.comlaw.gov.au/.
To amend the
Telecommunications (Interception and Access) Act 1979 (the
TIA Act) to include the Public Interest Monitor (PIM) of Queensland
into the TIA Act which will facilitate Queensland law enforcement
agencies to come under the TIA Act.
In the second reading speech to the Telecommunications
Interception Legislation Amendment Bill (No.2) 2008 (the Bill) the
Attorney-General makes the following statements:
The inclusion of Queensland agencies will mean
that the interception regime established by the TIA Act will become
truly national. Queensland is currently the only jurisdiction whose
law enforcement agencies do not have interception powers.[1]
Finally, it is important to note that this Bill
does not of itself give Queensland law enforcement agencies access
to interception powers.[2]
In the Queensland Parliament in August 2008 it was announced by
the Premier in a Ministerial Statement:
Members may recall that there have been ongoing
discussions between the state and federal governments about making
phone-tapping powers available to Queensland law enforcement
agencies. I am very pleased to advise the House today that the
Prime Minister has written to me confirming that the Australian
government will now support telecommunication interception powers
for the Queensland Police Service and the Crime and Misconduct
Commission. Kevin Rudd has accepted that these powers should be
subject to the involvement of the Public Interest Monitor, an
independent barrister who represents the public interest. Phone
tapping (sic) is a highly effective law enforcement power,
but it is also a highly intrusive one. We have always said that we
would consider these powers, but we have also said that they had to
come with appropriate safeguards for people s privacy, and we make
no apologies for that.[3]
Before the Attorney-General can declare an agency to be eligible
under the TIA Act, States must have legislation in place to meet
the accountability and record keeping requirements of the
Commonwealth law. For Queensland to be able to comply with these
requirements it is necessary for the Commonwealth to recognise in
the law the existence and role of the PIM in Queensland.[4] Once this is in place,
Queensland will be able to enact laws without running into
Constitutional inconsistency problems under section 109 of the
Constitution.[5] As
Queensland intends to give the PIM an oversight role in the
application process in the Queensland legislation, similar to that
function he or she has under the preventative detention application
process, the Commonwealth must give specific reference to the PIM
so that there is consistency between the two regimes. At the time
of this Digest there is no Queensland Bill before that Parliament,
however, once the Queensland Bill is passed, this Bill will
commence.[6]
Under the TIA Act it is prohibited to intercept, or authorise
interception, of a communication passing over a telecommunications
system. However, the Act provides a number of exemptions, including
to the officers of law enforcement and security agencies, under
warrant, if the Attorney-General is satisfied that the
communications system is being used by a person engaged in, or
likely to be engaged in, or reasonably suspected to be engaged in,
activities or purposes that are prejudicial to security.[7]
This Bill has not been referred to Committee, but
Telecommunications Interception Bills have been the subject of
previous Committee reports. The Senate Legal and Constitutional
Affairs Committee conducted inquiries into the 2006, 2007 and 2008
amending Acts to the TIA Act. The Reports have various
recommendations and can be found on the Committee s
website.[8]
There will be no financial impact until Queensland agencies are
declared by the Attorney-General to be eligible under the TIA Act.
Once agencies start applying for warrants there will be a financial
impact on the Courts and the Administrative Appeals Tribunal which
will be hearing these applications.[9]
Items 1 and 2 insert
definitions of deputy public interest monitor and public interest
monitor (PIM) into the definitions section of the
Telecommunications (Interception and Access) Act 1979 (the
TIA Act).
Proposed section 45, item 4, is the key
provision of the Bill and enables the PIM to appear before a Judge
or tribunal member who is hearing an application for a warrant in
respect of a telecommunications service. The section applies if an
interception agency of Queensland makes such an
application.[10]
The PIM can make submissions orally or in writing
(proposed subsection 45(2)), and question the
applicant or other person providing information to the Judge or
tribunal member (proposed paragraphs 45(3)(a) and
(b)). The PIM can delegate these powers to a deputy PIM in
writing, and a deputy PIM must comply with any directions in the
exercise of these powers (subsections 45(4)
and (5)).
Proposed section 45A preserves any law of
Queensland that authorises or requires an applicant or proposed
applicant for a warrant to notify the PIM of the application and
related information, and provide the PIM with related documents in
the application for a warrant.
Telecommunications service warrants and named persons warrants
are issued by a Judge or AAT member under section 46 and section
46A of the TI Act. Item 6 requires the Judge or
member to have regard to any submissions made by the PIM during the
course of hearing an application by a Queensland agency under
proposed section 45.
Item 3 inserts proposed paragraph
35(1)(ha) to provide that persons who make an application
for a warrant or who perform a function or exercise a power in an
application for a warrant under proposed section
45 cannot undertake an inspection of an eligible authority
s records for ascertaining compliance with record keeping
requirements. Existing section 35 sets out the preconditions for
the Attorney-General to be satisfied of before he or she can
declare an eligible authority to be an agency under the TIA Act.
The Attorney-General has to be satisfied each State has made
satisfactory legislative provision of certain things, such as
requiring the chief officer to keep records and copies of
warrants[11],
keeping things in possession of the authority in a secure
place[12] or
destroying records if the record is not likely to be required for a
permitted purpose.[13] The effect of the proposed paragraph
35(1)(ha) will be that not only will persons appearing
before a Judge or the AAT for a warrant be unable to carry out
accountability inspections, nor will the PIM of Queensland if the
PIM has appeared or made submissions during the course of the
hearing under proposed section 45.[14]
The Surveillance Devices Act 2004 establishes
procedures for warrants, emergency authorisations and tracking
device authorisations for using surveillance devices in criminal
investigations and related matters.[15] Items 1 and 2 of
this Schedule amend the definition sections in that Act, and the
TIA Act, to reflect changes that have been made to the
organisational structure of the Queensland Crime and Misconduct
Commission (CMC) to refer to the chairperson or assistant
commissioner of the CMC.
Items 3 and 4 are designed to
correct an error introduced by the Telecommunications
Interception Legislation Amendment Act 2008 (the Amendment
Act). [16] As
paragraph 5(1)(f) stands, the Commissioner of a State police force
can only authorise a senior executive Australian Federal Police
(AFP) employee who is a member of the AFP to be a
certifying officer of the State police force. The proposed
amendment will ensure that a State Commissioner can authorise a
State police officer (whose rank
is equivalent to that of a senior executive AFP employee) to be a
certifying officer for the State police.
The Amendment Act was necessary to address the decision of
Hong Kong Bank of Australia Ltd v Australian Securities
Commission (1992) 108 ALR 70 which held that the power to
confer authority could only be found to exist when the
authorisation was expressly conferred.[17] Therefore persons must be identified
to be specifically authorised under the effected provisions. At the
time, for the AFP, the term certifying officer included the
Commissioner of Police, a Deputy Commissioner of Police or a senior
executive employee who is a member of the Australian Federal Police
and who is authorised in writing by the Commissioner of Police for
the purposes of this paragraph .[18]
Item 4 will ensure that authorisations made by
AFP senior executive employees before the amendment will be still
valid (if any). After the amendment is passed, AFP senior executive
employees will no longer be able to be certified to make
authorisations, at least under this particular paragraph.[19] This drafting error
means that until it is remedied there has been and is no power to
authorise senior State police officers to exercise the powers of
certifying officers under the TIA Act.[20]
Concluding
comments
The Bill has the main single purpose of facilitating Queensland
s entry into the telecommunications interception regime, and also
makes some amendments to remedy significant errors in the current
Act. The opportunity is not being taken at this time to address
previous recommendations of the Senate Legal and Constitutional
Affairs Committee for reforms and improvements to the operation of
the TIA Act.
Members, Senators and Parliamentary staff can obtain further
information from the Parliamentary Library on (02) 6277
2526.
Diane Spooner
2 February 2009
Bills Digest Service
Parliamentary Library
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