Chapter 5 - Other Amendments
5.1
This chapter considers the remaining provisions
of the Bill:
-
The removal of the distinction between Class 1
and Class 2 offences.
-
The removal of the TIRAC function.
-
Items in Schedule 6.
Class 1 and 2 offences
5.2
Until now the interception regime has authorised
interception on the basis of classes of offences. In the past only Class 2
offences required the issuing authority to have regard to privacy
considerations. The offence distinctions have been removed and the offences are
now termed 'serious offences'. Serious offences are defined in the new section
5D, and include murder or similar offences, kidnapping, offences under Division
307 of the Criminal Code (these include importation and possession of certain
drugs and plants) terrorism offences, offences against Division 72, 101, 102 or
103 of the Criminal Code (terrorism offences); or an offence in relation to
which the ACC is conducting a special investigation.
5.3
In his report, Mr
Blunn explored the necessity for the
classification of offences for the purposes of obtaining TI warrants. He found
that law enforcement agencies found the classification 'over prescriptive' and
occasionally a barrier to accessing data rather than a support.
5.4
The report continues:
Given that the objective in the case of both Class 1 and Class 2
offences is to justify the issuing of an interception warrant and having regard
to the similarity of the offences it is not clear why the distinction is made.
Any significance can only be in terms of the processes relating to the issue of
a warrant. The only difference between those processes is that in relation to
Class 2 offences the issuing authority is required to have regard to the
gravity of the offence and the extent of the interference to privacy involved.
In the case of Class 1 the gravity of the offences is inherent and presumably
is regarded as over-riding any privacy considerations.[142]
5.5
He concluded that the provision produces no
meaningful difference in outcome, and adds to the length and complexity of an
already convoluted Act. He recommended that 'those offences currently described
as Class 1 and Class 2 offences be identified solely by reference to the
prescribed term of imprisonment'.[143]
5.6
The removal of the distinction was commented
upon by the Law Council. The Council had serious reservations about much of the
Bill, and considered that particularly in the
case of B-Party intercepts, the existing Class 1 offences should be the only
offences which allowed the issue of a warrant.[144]
5.7
Conversely, both the AFP[145] and Commissioner Hyde
of the South Australian Police supported the proposal. Commissioner
Hyde further suggested that:
Another class of offence to capture corruption, child
pornography and significant offending that does not carry a 7 year term of
imprisonment should also be considered.[146]
5.8
The Explanatory Memorandum notes that the
amendments are designed to 'simplify a complex area of the interception
regime'. The Committee notes the Commissioner's suggestion, but considers that
to add another class of offences at this point would defeat the purpose of
simplification. Nevertheless, the offences he refers to are of sufficient
seriousness that they may warrant consideration in any subsequent review of
these provisions.
5.9
In general, the effect of the amendments is to
bring privacy considerations to all warrant applications and not limit them to
class 2 offences. The Committee welcomes this enhancement of the privacy
protections available under the Act.
Removal of the TIRAC function
5.10
Schedule 5 of the Bill
repeals the Telecommunications Interception Remote Authority Connection (TIRAC)
function which is exercised by the AFP. The removal of this function from the
AFP was a recommendation of the Blunn report.
5.11
TIRAC is
described in the Explanatory Memorandum as
... a historical electronic accountability mechanism which
requires each interception agency to lodge its interception warrants with the
AFP. The effect of this function is that the warrants do not take effect until
the AFP receives the warrant and notifies the Managing Director of the carrier
of the issue of the warrant.[147]
5.12
In his second reading speech, the Attorney
General observed that:
TIRAC’s utility has been exhausted by technological
developments, and the bill replaces the current requirements for AFP to
facilitate warrants by a requirement for my department to scrutinise warrants
immediately upon issue and maintain a register of warrants.
The act will continue to require all agencies to maintain
comprehensive records as part of the interception regime which are subject to
regular compliance inspections by the Commonwealth Ombudsman or equivalent
state oversight body.[148]
5.13
This amendment, which is effectively an
administrative one, was supported by the AFP, and was not a subject which elicited
a great deal of comment by submitters or witnesses. The Committee considers
that the change should be monitored to ensure that the effect of the amendments
does not lower standards of efficiency or accountability.
Other amendments: Schedule 6
5.14
Schedule 6 of the Bill
makes other amendments to the Act to ensure the ongoing effective operation of
the interception regime in Australia.
5.15
The proposed amendments seek to:
-
include an additional permitted purpose for use
and communication of lawfully obtained information in relation to the Victorian
Office of Police Integrity;
-
clarify that employees of a carrier exercise
authority under a telecommunications interception warrant when assisting law
enforcement agencies in the execution of interception;
-
remove the exception to the definition of
interception in subsection 6(2) of the Act;
-
update applicable reference to money laundering
offences in New South Wales; and
-
correct drafting errors within the Act which
have been the result of previous amendments Acts.[149]
5.16
Generally, the amendments contained in Schedule
6 of the Bill have not been the subject of any
objection throughout the inquiry.
5.17
One minor exception is the repeal of subsection
6(2).
5.18
Subsection 6(2) creates an exception to the
general prohibition in subsection 7(1) against the interception of a communication
in its passage of the Australian telecommunication system. At the commencement
of the Act subsection 6(2) was intended to exempt the activities of
telecommunications carriers and employees of the carrier from the general
prohibition contained in subsection 7(1) to allow the testing of the carrier's
equipment to ensure that the network and associated equipment operated
correctly.[150]
5.19
The Australian Bankers Association states that:
Section 6(2) is consequently most useful
in the context of emails where it is not possible to ensure that the person
making the communications has 'knowledge' of any recording or listening
activities. The repeal of the section may therefore impact on the ability of
organisations to monitor incoming emails. This is a matter of grave concern in
light of the need for organisations to perform, for various reasons, the
routine interception and scanning of such communications.
5.20
However, the repeal of subsection 6(2) has been
welcomed by many organisations. The Office of the Privacy Commissioner advised
that:
The Office supports the repeal of s. 6(2) of the Interception
Act. This section has given rise to confusion in the past about the
circumstances under which phone calls may be covertly monitored. The repeal of
s. 6(2) will assist in reinforcing the privacy objects of the Interception Act.
5.21
Proposed section 108(2) sets out a number of
exceptions to the general prohibition on access to stored communications.
Subsection 108(2)(e) provides that the general prohibition does not apply in relation
to:
Accessing a stored communication by another person lawfully
engaged in duties relating to the installation, connection or maintenance of
equipment or a line, if it is reasonably necessary for the person to access the
communication in order to perform those duties effectively
5.22
The Explanatory Memorandum states that:
This exception provides that network or system administrators do
not contravene the prohibition against interception by performing routine
functions designed to prevent malicious content such as viruses from entering
their networks.
Committee view
5.23
The Committee considers that the concern
expressed that the repeal of subsection 6(2) impacts the ability to monitor
incoming emails is addressed by the proposed exemptions to the general prohibition
on stored communications in subsection 108(2).
5.24
The Committee also agrees with the view that the
repeal of the subsection reinforces the privacy objectives of the Act.
Recommendation 27
5.25
The Committee recommends that the amendments proposed
in Schedule 6 of the Bill be passed.
Recommendation 28
5.26
Subject to the amendments set out above, the
Committee recommends that the Bill be passed.
Senator Marise Payne
Committee Chair
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