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This is a Bill, not an Act. For current law, see the Acts databases.
1996-97
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Telecommunications
(Interception) and Listening Device Amendment Bill
1997
No. ,
1997
(Attorney-General)
A
Bill for an Act to amend the Telecommunications (Interception) Act 1979,
the Australian Federal Police Act 1979, the Customs Act 1901 and
the Financial Transaction Reports Act 1988, and for related
purposes
9706020—1,094/12.5.1997—(60/97)
Cat.No. 96 7683 X ISBN 0644 502126
Contents
A Bill for an Act to amend the Telecommunications
(Interception) Act 1979, the Australian Federal Police Act 1979, the
Customs Act 1901 and the Financial Transaction Reports Act 1988,
and for related purposes
The Parliament of Australia enacts:
This Act may be cited as the Telecommunications (Interception) and
Listening Device Amendment Act 1997.
(1) Subject to subsections (2) and (3), this Act commences on the day on
which it receives the Royal Assent.
(2) The following provisions commence on a day or days to be fixed by
Proclamation:
(a) items 6, 19, 20, 24, 25, 27 to 39 (inclusive) and 47 to 50 (inclusive)
of Schedule 1;
(b) Schedule 2;
(c) items 1 to 8 (inclusive) and 11 to 13 (inclusive) of Schedule
3.
(3) If an item of a Schedule to this Act does not commence under
subsection (2) within the period of 6 months beginning on the day on which this
Act receives the Royal Assent, it commences on the first day after the end of
that period.
Subject to section 2, each Act that is specified in a Schedule to
this Act is amended or repealed as set out in the applicable items in the
Schedule concerned, and any other item in a Schedule to this Act has effect
according to its terms.
1 Subsection 5(1) (at the end of the definition
of certifying officer)
Add:
; or (g) in the case of the Police Integrity Commission:
(i) the Commissioner of the Police Integrity Commission; or
(ii) an Assistant Commissioner of the Police Integrity Commission;
or
(iii) a member of the staff of the Police Integrity Commission who is a
Senior Executive Service officer within the meaning of the Public Sector
Management Act 1988 of New South Wales and is authorised in writing by the
Commissioner of the Commission for the purposes of this paragraph.
2 Subsection 5(1) (paragraph (d) of the
definition of chief officer)
Omit “Chairperson”, substitute
“Commissioner”.
3 Subsection 5(1) (at the end of the definition
of chief officer)
Add:
; or (h) in the case of the Police Integrity Commission—the
Commissioner of the Commission.
4 Subsection 5(1) (paragraph (b) of the
definition of eligible authority)
Omit “or the Independent Commission Against Corruption”,
substitute “, the Independent Commission Against Corruption or the Police
Integrity Commission”.
5 Subsection 5(1)
Insert:
member of the staff of the Policy Integrity Commission means
a person who is, for the purposes of the Police Integrity Commission Act, a
member of the staff of the Commission.
6 Subsection 5(1)
Insert:
nominated AAT member means a member of the Administrative
Appeals Tribunal in respect of whom a nomination is in force under section 6DA
to issue warrants under Part VI.
7 Subsection 5(1) (at the end of the definition
of officer)
Add:
; or (h) in the case of the Police Integrity Commission:
(i) the Commissioner or Assistant Commissioner of the Police Integrity
Commission; or
(ii) a member of the staff of the Policy Integrity Commission.
8 Subsection 5(1)
Insert:
Police Integrity Commission means the Police Integrity
Commission of New South Wales.
9 Subsection 5(1)
Insert:
Police Integrity Commission Act means the
Police Integrity Commission Act 1996 of New South Wales.
10 Subsection 5(1) (after subparagraph (b)(ii)
of the definition of permitted purpose)
Insert:
(iia) the making by a person of a decision under the Australian Federal
Police Act 1979 in relation to the appointment, re-appointment, term of
appointment or retirement of a member of the Australian Federal Police or a
staff member of the Australian Federal Police;
(iib) a review (whether by way of appeal or otherwise) of such a
decision;
11 Subsection 5(1) (after subparagraph (c)(ii)
of the definition of permitted purpose)
Insert:
(iia) the making by a person of a decision in relation to the appointment,
re-appointment, term of appointment or retirement of an officer or member of
staff of that Police Force;
(iib) a review (whether by way of appeal or otherwise) of such a
decision;
12 Subsection 5(1) (at the end of the definition
of permitted purpose)
Add:
; or (e) in the case of the Police Integrity Commission:
(i) an investigation under the Police Integrity Commission Act of
police misconduct of an officer of the New South Wales Police Service;
or
(ii) a report on such an investigation; or
(iii) the tendering to the Governor of New South Wales of advice to
terminate, because of misbehaviour or improper conduct, the appointment of the
Commissioner of the New South Wales Police Service; or
(iv) deliberations of the Executive Council of New South Wales in
connection with advice to the Governor of that State to terminate, because of
misbehaviour or improper conduct, the appointment of the Commissioner of the New
South Wales Police Service.
13 Subsection 5(1) (at the end of the definition
of prescribed investigation)
Add:
; or (f) in the case of the Police Integrity Commission—means an
investigation that the Commission is conducting in the performance of its
functions under the Police Integrity Commission Act.
14 Subsection 5(1) (at the end of the definition
of relevant offence)
Add:
; or (h) in the case of the Police Integrity Commission—a prescribed
offence that is an offence against the law of New South Wales and to which a
prescribed investigation relates.
15 After paragraph 5B(d)
Insert:
(da) a proceeding by way of a coroner’s inquest if, in the opinion
of the coroner, the event that is the subject of the inquest may have resulted
from the commission of a prescribed offence; or
16 Paragraph 5B(i) (second
occurring)
Reletter as paragraph (j).
17 At the end of section 5B
Add:
; or (k) a proceeding of the Police Integrity Commission; or
(l) a proceeding by way of a bail application if the application relates
to a proceeding by way of a prosecution for a prescribed offence; or
(m) a proceeding by way of review of a decision to refuse such a bail
application.
Note: Paragraphs (l) and (m) were inserted as a response to
the decision of the Court of Appeal of New South Wales in Director of Public
Prosecutions v Serratore (1995) 132 ALR 461.
18 Paragraph 6A(1)(c)
Omit “or the Independent Commission Against Corruption”,
substitute “, the Independent Commission Against Corruption or the Police
Integrity Commission”.
19 After section 6D
Insert:
(1) The Minister may, by writing, nominate a person who holds one of the
following appointments to the Administrative Appeals Tribunal to issue warrants
under Part VI:
(a) Deputy President;
(b) full-time senior member;
(c) part-time senior member;
(d) member.
(2) Despite subsection (1), the Minister must not nominate a person who
holds an appointment as a part-time senior member or a member of the Tribunal
unless the person:
(a) is enrolled as a legal practitioner of the High Court, of another
federal court or of the Supreme Court of a State or of the Australian Capital
Territory; and
(b) has been so enrolled for not less than 5 years.
(3) A nomination ceases to have effect if:
(a) the nominated AAT member ceases to hold an appointment of a kind set
out in subsection (1); or
(b) the Minister, by writing, withdraws the nomination.
(4) A nominated AAT member has, in performing a function of or connected
with, issuing a warrant under Part VI, the same protection and immunity as a
Justice of the High Court has in relation to proceedings in the High
Court.
20 Section 6H
Omit “Judge” (wherever occurring), substitute “Judge or
nominated AAT member”.
21 At the end of section 6K
Add:
; and (c) a proceeding by way of an application for a restraining order,
or an order that is ancillary to a restraining order, under any of the
following:
(i) the Proceeds of Crime Act 1987;
(ii) the Confiscation of Proceeds of Crime Act 1989 of New South
Wales;
(iii) the Crimes (Confiscation of Profits) Act 1986 of
Victoria;
(iv) the Crimes (Confiscation of Profits) Act 1989 of
Queensland;
(v) the Crimes (Confiscation of Profits) Act 1988 of Western
Australia;
(vi) the Crimes (Confiscation of Profits) Act 1986 of South
Australia;
(vii) the Criminal Assets Confiscation Act 1996 of South
Australia;
(viii) the Crime (Confiscation of Profits) Act 1993 of
Tasmania;
(ix) the Proceeds of Crime Act 1991 of the Australian Capital
Territory;
(x) the Crimes (Forfeiture of Profits) Act 1988 of the Northern
Territory.
22 Paragraph 6L(2)(b)
Omit “or the Independent Commission Against Corruption”,
substitute “, the Independent Commission Against Corruption or the Police
Integrity Commission”.
23 After subsection 7(6)
Insert:
(6A) Subsection (6) does not apply if action has been taken under
subsection (4) or (5) to intercept a communication, or cause it to be
intercepted, and the action has ceased before it is practicable for an
application for a Part VI warrant to be made.
24 Subsection 7(7)
Omit “judge”, substitute “Judge or nominated AAT
member”.
25 Subsection 39(1)
Omit “Judge”, substitute “Judge or nominated AAT
member”.
26 At the end of subsection
39(2)
Add:
; or (g) in the case of the Police Integrity Commission:
(i) an Assistant Commissioner or the Commissioner of the Police Integrity
Commission; or
(ii) a member of the staff of the Police Integrity Commission.
27 Section 43
Omit “Judge” (wherever occurring), substitute “Judge or
nominated AAT member”.
28 Section 44
Omit “Judge” (wherever occurring), substitute “Judge or
nominated AAT member”.
29 Section 45
Omit “Judge” (wherever occurring), substitute “Judge or
nominated AAT member”.
30 Section 46
Omit “Judge” (wherever occurring), substitute “Judge or
nominated AAT member”.
31 Subsection 48(3)
Omit “Judge” (wherever occurring), substitute “Judge or
nominated AAT member”.
32 Subsection 48(4)
Omit “Judge”, substitute “Judge or nominated AAT
member”.
33 Subsection 48(5)
Omit “Judge” (wherever occurring), substitute “Judge or
nominated AAT member”.
34 Section 49
Omit “Judge” (wherever occurring), substitute “Judge or
nominated AAT member”.
35 Section 50
Omit “Judge” (wherever occurring), substitute “Judge or
nominated AAT member”.
36 Subsection 51(2)
Omit “Judge”, substitute “Judge or nominated AAT
member”.
37 Subsection 51(3)
Omit “Judge”, substitute “Judge or nominated AAT
member”.
38 Subsection 52(1)
Omit “Judge”, substitute “Judge or nominated AAT
member”.
Note: The heading to section 52 is altered by inserting
“or nominated AAT member” after
“Judge”.
39 Subsection 53(2)
Omit “Judge” (wherever occurring), substitute “Judge or
nominated AAT member”.
40 Paragraph 55(6)(a)
After “warrant”, insert “, to the extent that the act is
incidental to the doing of an act referred to in paragraph (b)”.
41 Subsections 55(8) and
(9)
Repeal the subsections.
42 Section 67
After “officer”, insert “or staff
member”.
43 At the end of section 68
Add:
; and (f) if the information relates, or appears to relate, to a matter
that may give rise to an investigation by the Police Integrity
Commission—to the Commissioner of the Police Integrity
Commission.
44 Paragraph 81(1)(c)
After “warrant” (first occurring), insert “whose
authority is exercised by the agency”.
45 After paragraph 81(2)(b)
Insert:
(ba) in relation to each Part VI warrant whose authority is exercised by
the Authority, particulars of:
(i) the warrant; and
(ii) the day on which, and the time at which, each interception under the
warrant began; and
(iii) the duration of each such interception; and
(iv) the name of the person who carried out each such interception;
and
46 At the end of paragraphs 81(2)(a), (b), (c)
and (d)
Add “and”.
47 Paragraph 81A(2)(b)
Omit “Judge”, substitute “Judge or nominated AAT
member”.
48 Paragraph 81A(2)(g)
Omit “Judge”, substitute “Judge or nominated AAT
member”.
49 Paragraph 81C(2)(b)
Omit “Judge”, substitute “Judge or nominated AAT
member”.
50 Paragraph 81C(2)(g)
Omit “Judge”, substitute “Judge or nominated AAT
member”.
51 After section 94
Insert:
(1) The chief officer of an agency referred to in subsection 7(8) must
give to the Minister a written report concerning:
(a) an emergency interception action taken by an officer of the agency
that, because of the operation of subsection 7(6A), took place without a warrant
under Part VI; and
(b) an emergency interception action taken by an officer of the agency in
respect of which an application for a warrant was made under Part VI and
refused.
(2) The chief officer of the agency must give the report within 3 months
after:
(a) in the case set out in paragraph (1)(a)—the date on which the
action ceased; and
(b) in the case set out in paragraph (1)(b)—the date on which the
application was refused.
(3) The report must contain the following information:
(a) if an interception occurred:
(i) the date and time at which the interception began; and
(ii) the duration of the interception;
(b) if there was no interception but action had been taken to cause a
communication to be intercepted—details of the action taken;
(c) the circumstances that led the officer concerned to believe that the
conditions of subsection 7(4) or (5) were satisfied;
(d) in the case set out in paragraph (1)(a)—the reasons it was not
practicable to apply for a warrant under Part VI in relation to the
action;
(e) in the case set out in paragraph (1)(b)—the reasons the judge or
nominated AAT member refused the application if the reasons are known;
(f) information about the use made by the agency of information obtained
by the interception;
(g) information about the communication of such information to persons
other than officers of the agency;
(h) the number of arrests that have been, or are likely to be, made on the
basis of such information;
(i) an assessment of the usefulness of information obtained by the
interception.
(4) In this section:
emergency interception action means an interception done
under subsection 7(4) or (5) or action taken under one of those subsections to
cause an interception to occur.
1 Section 12B
Insert:
nominated AAT member means a member of the Administrative
Appeals Tribunal in respect of whom a nomination is in force under section 12DA
to issue warrants under section 12G for use of listening devices.
2 After section 12D
Insert:
(1) The Minister may, by writing, nominate a person who holds one of the
following appointments to the Administrative Appeals Tribunal to issue warrants
under section 12G for use of listening devices:
(a) Deputy President;
(b) full-time senior member;
(c) part-time senior member;
(d) member.
(2) Despite subsection (1), the Minister must not nominate a person who
holds an appointment as a senior member or a member of the Tribunal unless the
person:
(a) is enrolled as a legal practitioner of the High Court, of another
federal court or of the Supreme Court of a State or of the Australian Capital
Territory; and
(b) has been so enrolled for not less than 5 years.
(3) A nomination ceases to have effect if:
(a) the nominated AAT member ceases to hold an appointment of a kind set
out in subsection (1); or
(b) the Minister, in writing, withdraws the nomination.
(4) A nominated AAT member has, in performing a function of or connected
with, issuing a warrant, the same protection and immunity as a Justice of the
High Court has in relation to proceedings in the High Court.
3 Section 12G
Omit “Judge” (wherever occurring), substitute “Judge or
nominated AAT member”.
4 Section 12H
Omit “Judge”, substitute “Judge or nominated AAT
member”.
1 Subsection 219A(1)
Insert:
nominated AAT member means a member of the Administrative
Appeals Tribunal in respect of whom a nomination is in force under section 219AB
to issue warrants under section 219B for use of listening devices.
2 After section 219AA
Insert:
(1) The Minister may, by writing, nominate a person who holds one of the
following appointments to the Administrative Appeals Tribunal to issue warrants
under section 219B for use of listening devices:
(a) Deputy President;
(b) full-time senior member;
(c) part-time senior member;
(d) member.
(2) Despite subsection (1), the Minister must not nominate a person who
holds an appointment as a senior member or a member of the Tribunal unless the
person:
(a) is enrolled as a legal practitioner of the High Court, of another
federal court or of the Supreme Court of a State or of the Australian Capital
Territory; and
(b) has been so enrolled for not less than 5 years.
(3) A nomination ceases to have effect if:
(a) the nominated AAT member ceases to hold an appointment of a kind set
out in subsection (1); or
(b) the Minister, by writing, withdraws the nomination.
3 Subsection 219B(5)
Omit “Judge” (wherever occurring), substitute “Judge or
nominated AAT member”.
4 Subsection 219B(6)
Omit “Judge”, substitute “Judge or nominated AAT
member”.
5 Subsection 219B(7)
Omit “Judge” (wherever occurring), substitute “Judge or
nominated AAT member”.
6 Subsection 219B(8)
Omit “Judge”, substitute “Judge or nominated AAT
member”.
7 Subsection 219B(9)
Omit “Judge”, substitute “Judge or nominated AAT
member”.
8 Section 219C
Omit “Judge”, substitute “Judge or nominated AAT
member”.
9 At the end of paragraph
219F(2)(a)
Add:
; or (iv) an officer of the Police Integrity Commission of New South
Wales; and
10 At the end of section
219F
Add:
(5) In this section:
officer of the Police Integrity Commission means a person who
is, for the purposes of the Police Integrity Commission Act 1996 of New
South Wales, an officer of the Police Integrity Commission of New South
Wales.
11 Section 219H
Omit “Judge”, substitute “Judge or nominated AAT
member”.
12 Subsection 219K(1)
Omit “Judge”, substitute “Judge or nominated AAT
member”.
13 At the end of section
219ZL
Add:
(4) A nominated AAT member has, in performing a function of, or connected
with, issuing a warrant under section 219B, the same protection and immunity as
a Justice of the High Court has in relation to proceedings in the High
Court.
(5) In this section:
nominated AAT member means a member of the Administrative
Appeals Tribunal in respect of whom a nomination is in force under section 219AB
to issue warrants under section 219B for use of listening devices.
1 Subsection 3(1)
Insert:
Australian Bureau of Criminal Intelligence means the body
known by that name established under an agreement between the Commonwealth and
each of the States.
2 Subsection 3(1)
Insert:
member of the staff of the Police Integrity Commission means
a person who is, for the purposes of the Police Integrity Commission Act
1996 of New South Wales, a member of the staff of the Commission.
3 Subsection 3(1)
Insert:
Police Integrity Commission means the Police Integrity
Commission of New South Wales.
4 After subsection 27(1)
Insert:
(1A) Despite paragraph (1)(b), the Director may only authorise the
Australian Bureau of Criminal Intelligence and the Police Integrity Commission
under that paragraph if the Bureau or the Commission (as the case requires)
undertakes that it will comply with the Information Privacy Principles set out
in section 14 of the Privacy Act 1988 in respect of FTR information
obtained under the authorisation.
5 At the end of subsection
27(16)
Add:
; and (f) the Police Integrity Commission; and
(g) the Australian Bureau of Criminal Intelligence.
6 At the end of subsection
27(17)
Add:
; and (p) the Commissioner of the Police Integrity Commission;
and
(q) an Assistant Commissioner of the Police Integrity Commission;
and
(r) a member of the staff of the Police Integrity Commission;
and
(s) a member of the staff of the Australian Bureau of Criminal
Intelligence.