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Telecommunications (Interception and Access) Amendment Regulation 2013 (No. 1)

FRLI: F2013L00519

Portfolio: Attorney-General

Summary of committee view

2.1        The committee seeks clarification as to how investigation of breach of a control order is an investigation into a 'serious offence' and how this instrument is compatible with the right to freedom of association.

Overview

2.2        This instrument expands the definition of a 'criminal organisation' under the Telecommunications Interception and Access Act 1979 (TIA Act). It extends this to organisations that have been declared to be a 'declared organisation' by the Northern Territory Supreme Court, under the Northern Territory's Serious Crime Act (SCA). The SCA allows a court to declare an organisation if some members of the organisation associate for the purpose of serious criminal activity and the organisation represents a risk to public safety and order.

2.3        By extending the definition of a 'criminal organisation', this instrument allows for the interception of communication (e.g. phone tapping, email and website monitoring, home surveillance) of those connected with the organisation. In particular, the statement of compatibility notes that surveillance will assist in helping to establish if a person subject to a control order under the SCA is in breach of that order by communicating with certain persons. Under the SCA a person can be made subject to a control order (which limits who they may associate with) for a number of reasons, including simply that the person is, or was, a member of a declared organisation (there is no requirement that they be suspected of involvement themselves in criminal activity).

Compatibility with human rights

2.4        The statement of compatibility states that the instrument engages the right to privacy (under article 17 of the International Covenant on Civil and Political Rights (ICCPR)) and the right to freedom of expression (under article 19 of the ICCPR). The statement concludes that the instrument is compatible with those rights as the restriction on rights seeks to achieve the legitimate objective of investigating serious crimes and protecting public order and the safeguards in the TIA Act ensure that the limitation is reasonable and proportionate.

2.5        The committee accepts that the investigation of serious crime is a legitimate objective. However, it notes that the definition of  'serious crime' in the TIA Act is limited to serious offences such as murder, kidnapping, terrorism or slavery or certain listed offences subject to imprisonment of seven years or more. Yet, breach of a control order under the SCA is subject to up to five years imprisonment. An investigation regarding a possible breach of a control order breach does not, on the face of it, appear to fall within the definition of a serious offence.

2.6        Given that the amendments would appear to effectively lower the threshold for what is considered to be a 'serious offence' under the TIA, the committee is concerned whether the extension of the TIA regime to capture breaches of control orders under the SCA can be justified as a necessary and proportionate limitation on the right to privacy. The committee notes that not every measure that might contribute to the partial achievement of a legitimate objective is, by virtue of that fact alone, necessarily a reasonable and proportionate measure.

2.7                 The committee intends to write to the Attorney-General to seek clarification as to how investigation of breach of a control order (as stated in the statement of claim) is an investigation into a 'serious offence' under the TIA Act, and how the apparent expansion of the definition of 'serious offence' to capture breaches of a control order under the SCA is compatible with the right to privacy.

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