Chapter 2 - Overview of the bill
This chapter briefly outlines the main provisions of
Significant provisions of the Bill
The Bill seeks to amend
the Criminal Code and the TI Act 'to ensure that they operate in a manner that
enhances rather than hinders the functioning of [Australia's]
law enforcement agencies'. The
amendments contained in the Bill will primarily
affect the TI Act.
Schedule 1 – Amendment of the Criminal Code Act 1995
Legislation Amendment (Telecommunications Offences and Other Measures) Act
(No.2) 2004 repealed the telecommunications offences in the Crimes Act 1914 and replaced them with
new and updated telecommunications offences in the Criminal Code. The Criminal
Code provides a 'law enforcement officer' who acts in good faith in the course
of his or her duties and whose conduct is reasonable in the circumstances of
performing those duties with a defence to these and other offences.
Currently, the expression 'law enforcement officer' is
defined with reference to the Australian Federal Police (AFP), state/territory
and foreign police forces, the Australian Crime Commission, the Commonwealth
Director of Public Prosecutions and similar offices established under
Item 1 of Schedule 1 expands the definition of 'law
enforcement officer' to encompass officers of the New South Wales (NSW) Crime
Commission, the Independent Commission Against Corruption, the Western
Australia (WA) Corruption and Crime Commission, staff of the NSW Police
Integrity Commission, or any other agency that is prescribed by regulation.
This will mean that a defence is available when an officer of those agencies
engages in activities ancillary to telecommunications interception.
Any regulations prescribing agency employees as a 'law
enforcement officer' must be tabled in Parliament and are subject to
disallowance by either House.
The proposed amendment will commence retrospectively on
1 March 2005. This is the
date that the Crimes Legislation
Amendment (Telecommunications Offences and Other Measures) Act (No.2) 2004
Schedule 2 – Amendment of the Telecommunications (Interception) Act 1979
Part 1 – Emergency Services
At present, subsections 6(2A) and (2B) of the TI Act
provide that listening to or recording communications to prescribed emergency
services numbers operated by the
police, a fire service or an ambulance service does not constitute an
interception for the purposes of the TI Act. Item 1 of Schedule 2 of the Bill
repeals subsections 6(2A) and (2B).
Items 3 and 4 insert new subsections 7(2) and (3) into
the TI Act. The effect of these new subsections is that the interception of
communications made to or from a telecommunications service that is located
within premises that are declared as an emergency service facility will be exempted from the general prohibition on the
interception of telecommunications contained in subsection 7(1) of the TI Act.
The term 'premises' is defined in section 5 of the TI Act as including any
land, any structure, building, aircraft, vehicle, vessel or place (whether
built on or not), and any part of such a structure, building, aircraft,
vehicle, vessel or place.
The effect of Items 3 and 4 is that calls made within premises
that are declared as an emergency service facility may be lawfully recorded without
a warrant and without the need for an automated or manual warning that
recording will occur.
The Bill also effects
other changes to provisions relating to emergency services. These include the
- the exemption will apply to 'emergency services
facilities' rather than 'emergency services numbers', meaning that 'hundreds,
if not thousands, of numbers' will be
covered. There are only three numbers currently prescribed for the purposes of
the TI Act (000, 106 and 112);
- unlike the existing provision which only covers
calls made from emergency services
numbers, the amendments will potentially capture calls made from as well as to emergency services facilities;
- as well as police, fire and ambulance services,
an 'emergency services facility' will include services for despatching or
referring matters to the police, fire service or ambulance services (which is
intended to capture outsourced services); and
- unlike the current exemption in the TI Act which
applies to a person 'lawfully engaged in duties', there is no requirement in the Bill for
emergency services interceptions to occur lawfully in the course of a person's
One of the major changes proposed by the Bill is that under
new subsections 7(3AA) and (3AB), the Attorney-General may, by written
instrument, declare 'premises' to be an 'emergency services facility' if the
Attorney-General is satisfied that certain conditions are met. The Bill
provides that the Attorney-General may only declare premises to be an
'emergency services facility' if he or she is satisfied that the premises are
operated by a police, fire, ambulance or related service for the purpose of
dealing with requests for assistance in emergencies.
New subsection 7(3AC) is included to clarify that the
Attorney-General's declaration is not a legislative instrument within the
meaning of section 5 of the Legislative
Instruments Act 2003 (the Legislative Instruments Act). Currently,
'emergency service numbers' are prescribed by regulation. An important difference between an
instrument that is not a legislative instrument and a regulation is that the
former is not subject to parliamentary scrutiny, need not be tabled in
Parliament and is not subject to parliamentary disallowance.
The Explanatory Memorandum (EM) states that the reason
a declaration under new subsection 7(3AB) is not a legislative instrument is to
'ensure that the locations of emergency services facilities are not publicly
available'. The EM states further
No attention is drawn to the locations of these emergency
services facilities, which are in as innocuous a location as possible. These
facilities represent critical operational infrastructure which needs close
protection as their loss would endanger the public for as long as these
services were unavailable. There are few benefits in having the location of
these facilities made public, and any that do exist are far outweighed by the
The amendments relating to emergency services commence
on proclamation or six months after Royal Assent, whichever is earlier. They do
not operate retrospectively and therefore may expose some emergency services
workers (such as those who may have recorded conversations on numbers other
than 000, 106 and 112) to penalties under the TI Act.
Part 2 – Interception by radiocommunications inspectors
Items 5-7 amend subsection 7(2) of the TI Act to create
an exception to the general prohibition against the interception of
communications to allow the interception (without a warrant) by the Australian
Communications Authority (ACA). The exception is limited to interception in the
performance of a statutory spectrum management function, or the exercise of a
related power, under the Australian
Communications Authority Act 1997 or the Radiocommunications Act 1992. The interception must be in the
course of identifying the source of interference to critical
The EM states that, while a radiocommunications network
is not generally subject to the TI Act, the TI Act will apply where a
radiocommunications network is connected to the telecommunications system. To
the extent that the TI Act applies to a radiocommunications network, the ACA is
prevented from intercepting radiocommunications where they interconnect with
fixed line telecommunications. According to the EM, the Bill
will remove an impediment to the effective performance of an important
statutory function with potentially significant consequences by providing a
limited exception to this prohibition.
Part 3 – Ancillary offences
The TI Act enables law enforcement interception
warrants to be granted in relation to 'class 1' and 'class 2' offences. 'Class
1' offences include murder, kidnapping, narcotics offences, terrorism offences,
and ancillary offences involving aiding or conspiring to commit other 'class 1'
offences. 'Class 2' offences include offences punishable for life or a period
of at least 7 years where the offender's conduct involves death or serious
personal injury, drug trafficking, serious fraud, bribery, dealing in child
pornography, people smuggling, money laundering or cybercrime.
Item 8 of the Bill
expands the definition of 'class 1' offence in the TI Act to include conduct
comprising the offence of accessory after the fact. The effect of this
provision is that a 'class 1' telecommunications interception warrant will be
available in relation to a person who is an accessory after the fact in
relation to a 'class 1' offence.
Part 4 – Civil forfeiture proceedings and named person warrants
The amendments in Part 4 of the Bill
are the Federal Government's statutory response to three recommendations made
by the Sherman Report.
The origins of the Sherman Report can be traced to a
recommendation made by this committee in relation to its inquiry into the
Telecommunications (Interception) Legislation Amendment Bill 1999 (the 1999
Bill). The 1999 Bill, which became the Telecommunications (Interception)
Legislation Amendment Act 2000, contained a number of important amendments
to the TI Act, particularly the addition of 'named person warrants'.
While the committee recommended that the 1999 Bill
proceed, it also recommended that the Bill 'provide for a review of its
operations within three years of coming into effect', having regard to the need
for the new named person warrant, the adequacy of safeguards and the adequacy
of reporting mechanisms.
The Federal Government responded to the committee's
report by agreeing to a review of the operation of the Bill,
to take place within three years of the Bill coming
into effect. The former head of the National Crime Authority, Mr Tom Sherman
AO, was asked to complete the review.
The Sherman Report was completed in June 2003. It
concluded that the regulatory regime in relation to the TI Act generally
contained adequate safeguards and reporting mechanisms and had a strong
compliance culture which was well audited by the inspecting authorities.
However, it also made several recommendations which envisaged statutory
changes, along with procedural and administrative changes.
Item 9 of Schedule 2 of the Bill
substitutes new paragraph 6K(c) of the TI Act to include civil forfeiture
proceedings within the meaning of 'proceedings for the confiscation or
forfeiture or for pecuniary penalty' for the purposes of paragraph 5B(b) of the
TI Act. The effect of this amendment, which implements Recommendation 7 of the
Sherman Report, is to allow the use of information lawfully obtained (with a
warrant) under the TI Act in aid of civil forfeiture.
Item 9 also removes the list of Commonwealth and
state/territory proceeds of crime legislation currently contained in paragraph
6K(c) of the TI Act. It will instead provide the power to prescribe by
regulation such relevant Commonwealth and state/territory legislation as
necessary. The regulation will be a legislative instrument and subject to
Item 10 amends section 84 of the TI Act to require the
Ombudsman to include in its annual report to the Minister a summary of the
telecommunications interception inspections conducted in the relevant year,
together with a summary of any deficiencies identified and any remedial action
taken. The EM states that the amendment implements Recommendation 6 of the
Items 12 and 14 amend section 100 of the TI Act which
deals with the statistics that must be included in the Attorney-General's
annual report to Parliament. The amendments implement Recommendation 4 of the
Sherman Report. They will require the report to include aggregate statistics
- the number of applications for named person
warrants, telephone applications, renewal applications, applications that
involved entry onto premises, and how many named person warrants were issued subject
- how many named person warrants involved the
interception of a single telecommunications service, how many involved the
interception of between 2-5 services, 6-10 services and more than 10 services;
- the total number of telecommunications services
intercepted by way of named person warrants.
These figures will also be broken down by each relevant
Commonwealth and state agency.
Part 5 – Employees of carriers
The purpose of Part 5 is to clarify the expression
'employee of a carrier' as it appears in the TI Act. Item 15 defines an 'employee of a
carrier' as a person 'who is engaged by the carrier or whose services are made
available to the carrier'. This would include anyone who might not have been
employed in a strict legal sense by a carrier, for example contractors.
The definition of the term will apply to all references
to an 'employee of a carrier' in the TI Act. The EM states that the term has
always been interpreted as including contractors or persons working for a
carrier while employed by a company that is a subsidiary of, or related to, the
carrier. Therefore, since the provision does not seek to alter the definition,
the amendment will take effect from the date of commencement of the TI Act (1 June 1980).
Navigation: Previous Page | Contents | Next Page