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2004-2005
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
CRIMES LEGISLATION AMENDMENT (TELECOMMUNICATIONS INTERCEPTION
AND OTHER MEASURES) BILL 2005
EXPLANATORY MEMORANDUM
(Circulated by authority of the Attorney-General,
the Honourable Philip Ruddock MP)
CRIMES LEGISLATION AMENDMENT (TELECOMMUNICATIONS
INTERCEPTION AND OTHER MEASURES) BILL 2005
OUTLINE
1. The purpose of this Bill is to:
amend the Criminal Code Act 1995 to extend the defences to certain offences
under Part 10.6 of the Criminal Code to all agencies who may exercise powers
under the Telecommunications (Interception) Act 1979 (the Interception Act), and
make a number of amendments to the Interception Act to improve the efficiency
and effectiveness of that Act.
2. The Crimes 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Measures) Act (No.2) 2004 repealed the telecommunications offences in the Crimes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 amendments include a defence for law enforcement officers and
intelligence or security officers who are acting in good faith and in the course of their
duties where their conduct is reasonable for the purposes of performing that duty. Law
enforcement officer and intelligence or security officer are defined for the purposes of
these provisions. However, the definitions do not cover all members of all agencies
who may lawfully engage in telecommunications interception. The proposed
amendment will add those agencies that are not listed to ensure that the defences are
available in relation to activities ancillary to telecommunications interception.
3. The lawful interception of telecommunications in Australia by law enforcement
and security agencies is regulated by the Interception Act. The Interception Act
contains a general prohibition against the interception of communications passing over
a telecommunications system without the knowledge of the person making the
communication. This general prohibition operates subject to limited exceptions,
including an exception for interception carried out under a warrant to assist in the
investigation of serious criminal activity or threats to national security.
4. The Interception Act contains a range of safeguards, record-keeping and
reporting requirements to ensure that telecommunications interception is used
sparingly and in appropriate cases, and that intercepting agencies adhere to strict
standards of accountability. The Interception Act also contains numerous provisions
controlling the issue and revocation of warrants, the scope of the authority conferred
by warrants, the execution of warrants and the use of information obtained under
warrants.
5. This Bill will amend the Interception Act to:
(a) ensure the effective operation of the exception to the general prohibition against
the interception of communications to allow the interception (without a warrant)
of communications to and from certain declared emergency services facilities
(b) create a limited exception to the general prohibition against the interception of
communications to allow the interception (without a warrant) by authorised
radiocommunications inspectors who are fulfilling their statutory obligations
under the Radiocommunications Act 1992
(c) allow telecommunications interception warrants to be obtained in connection
with the investigation of the ancillary offence of accessory after the fact for a
class 1 offence
(d) implement the recommendations dealing with statistical information for named-
person warrants, reports by the Commonwealth Ombudsman and civil-forfeiture
regimes contained in the Report of the Review of Named Person Warrants and
Other Matters completed by Mr Tom Sherman AO in 2003,
(e) clarify the meaning of the term "an employee of a carrier".
FINANCIAL IMPACT STATEMENT
The amendments made by the Crimes Legislation Amendment (Telecommunications
Interception and Other Measures) Bill 2005 have no financial impact.
NOTES ON CLAUSES
Clause 1: Short title
The short title of this Act is the Crimes Legislation Amendment (Telecommunications
Interception and Other Measures) Act 2005.
Clause 2: Commencement
This clause provides a table that identifies the day of commencement for each item
which is noted in the explanation for each item.
Sections 1 to 3 are technical provisions and will commence on Royal Assent. Items 8
and 10 to 14 of Schedule 2 will also commence on Royal Assent.
Item 1 of Schedule 1 clarifies the definition of law enforcement officer contained in
section 473.1 of the Criminal Code. It is proposed that the amendment take effect
from the date of commencement of the telecommunications offences in the Criminal
Code, which was 1 March 2005. The retrospective commencement is necessary to
ensure that officers of agencies who may engage in telecommunications interception as
a necessary part of the performance of their duties are provided adequate coverage by
the defences to the telecommunications offences in relation to activities ancillary to
telecommunications interception. The amendment (with retrospective commencement)
will not adversely impact on an individual or the community.
Items 1 to 4 of Schedule 2 amend the Interception Act to ensure the effective
operation of the exemption from the general prohibition against telecommunications
interception for calls made to or from a declared emergency services facility. As it will
be necessary for the Attorney-General to declare in writing the facilities to which this
exemption applies, it is proposed that the amendments commence on proclamation or
six-months after Royal Assent, which ever occurs first. This will provide time for the
relevant emergency services to provide the information to the Attorney-General and
the declaration to be made.
The commencement provisions for items 5 to 7 of Schedule 2 deal with the
contingency situation of the commencement of the Australian Communications and
Media Authority Act 2005 (the ACMA Act) before or after this Bill.
Item 5 of Schedule 2 commences on Royal Assent but only if the ACMA Act has
commenced before this Bill. If the ACMA Act has not commenced before this Bill
receives Royal Assent, then item 5 will not commence at all. Item 6 commences on
Royal Assent unless the ACMA Act has commenced before that date, in which case
item 6 will not commence at all. Item 7, which commences immediately after the
commencement of the ACMA Act, proposes an amendment to the provision inserted
by item 6 in the event that the ACMA Act commences after this Bill. In the event that
the ACMA Act has commenced before this Bill, then item 7 will also not commence at
all.
Item 9 of Schedule 2 amends the Interception Act to include certain civil-forfeiture
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regimes within the meaning of exempt proceedings in that Act. As this will be done by
regulations prescribing the relevant Commonwealth, State and Australian Capital
Territory Acts, it is proposed that the amendment commences on proclamation or six-
months after Royal Assent, which ever occurs first. This will provide time for the
regulations to be made.
Item 15 of Schedule 2 provides an explanation for the expression "employee of a
carrier" for the purposes of the Interception Act. As it was always intended that that
expression would include anyone who was engaged by the carrier, or whose services
are made available to the carrier, it is proposed that the amendment take effect from
the date of the commencement of the Interception Act, that is, 1 June 1980. The
retrospective commencement is necessary to ensure that any proceeding that has used
information obtained from a telecommunications interception that took place as the
result of an action by someone who was not employed by a carrier in the strict
narrower sense is not jeopardised by this technical irregularity. In all cases, it is
possible to use section 75 of the Interception Act to argue that this technical
irregularity does not mean that the information obtained was not lawfully obtained,
however, having the amendments commence at the same time as the Interception Act
will put this issue beyond doubt. Although this provision reaches back a considerable
period of time, it does not adversely impact on individuals or the community as a
whole.
Clause 3: Schedule(s)
This clause provides that each Act that is specified in a Schedule is amended or
repealed as set out in that Schedule.
Schedule 1 - Amendment of the Criminal Code Act 1995
The purpose of this Schedule is to amend the Criminal Code to extend the defences to
certain offences under Part 10.6 of the Criminal Code to all agencies who may
exercise powers under the Interception Act.
The Criminal Code was recently amended by the Crimes Legislation Amendment
(Telecommunications Offences and Other Measures) Act (No.2) 2004, which
commenced on 1 March 2005. This Act repealed old and outdated telecommunications
offences in the Crimes Act 1914 and replaced them with modern telecommunications
offences in the Criminal Code. The amendments include a defence for law
enforcement officers and intelligence or security officers who are acting in good faith
and in the course of their duties where their conduct is reasonable for the purposes of
performing that duty. Law enforcement officer and intelligence or security officer are
defined for the purposes of these provisions.
However, the definitions do not cover all members of all agencies who may lawfully
engage in telecommunications interception.
The proposed amendment will add four agencies to the definition of law enforcement
agency to ensure that the defence is available when an officer of those agencies engage
in activities ancillary to telecommunications interception.
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Item 1
This item amends the definition of law enforcement officer in section 473.1 of the
Criminal Code to include reference to the New South Wales Crime Commission, the
New South Wales Independent Commission Against Corruption, the New South Wales
Police Integrity Commission, the Western Australian Corruption and Crime
Commission, or any other agency that is prescribed by regulation.
By including additional agencies in the definition of law enforcement officer, this item
ensures that the defences contained in sections 474.6 to 474.12 of the Criminal Code
apply to all intercepting agencies under the Interception Act in relation to conduct
ancillary to telecommunications interception.
As there may be further agencies declared under the Interception Act, this item also
amends section 473.1 of the Criminal Code to enable future bodies to be included by
regulation within the definition of law enforcement officer.
Schedule 2 - Amendment of the Telecommunications (Interception) Act 1979
Part 1 - Emergency Services
The purpose of this Part is to ensure the effective operation of the exception to the
general prohibition against the interception of communications to allow the
interception (without a warrant) of communications to and from a declared emergency
services facility contacted by the public seeking assistance in emergencies.
Item 1
This item will repeal subsections 6(2A) and 6(2B) from the Interception Act
consequential on the amendments proposed by items 3 and 4. The subsections provide
that the listening or recording of calls to or from certain prescribed emergency service
numbers does not constitute an interception for the purposes of the Interception Act.
Items 3 and 4 will introduce an exception from the general prohibition against
telecommunications interception for calls to and from a declared emergency services
facility and therefore subsections 6(2A) and 6(2B) are no longer required.
Item 2
This item will make a technical drafting amendment to add "or" at the end of each
paragraph in subsection 7(2) of the Interception Act.
Item 3
This item amends subsection 7(2) to provide that an interception of a communication
made to or from a telecommunications service that is located within premises that are
declared as an emergency services facility is not prohibited by the general prohibition
against interception set out in subsection 7(1) of the Interception Act. An emergency
services facility is defined in proposed new subsection 7(3AA) (see item 4). Premises
is defined in section 5 of the Interception 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.
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Item 4
This item inserts new subsections 7(3AA), (3AB) and (3AC) which provide a
definition of an emergency services facility and a method for declaration of such
facilities.
This proposed amendment means that calls made to or from a telecommunications
service located within premises that are declared as an emergency services facility may
be lawfully recorded without a warrant and without the need for an automated or
manual warning that recording will occur.
The Attorney-General may, by written instrument, declare premises to be an
emergency services facility. Before declaring an emergency services facility, the
Attorney-General must be satisfied that the facility is operated by a police force or
service of the Commonwealth, or of a State or of the Australian Capital Territory, a
fire or ambulance service of a State or the Australian Capital Territory, or a service for
dispatching or referring matters for the attention of one of those organisations, to
enable that force or service, or another force or service, to deal with a request for
assistance in an emergency. Paragraph 7(3AB)(d) is included to encompass emergency
services facilities that are outsourced and run as a private enterprise, such as occurs in
Victoria.
New subsection 7(3AC) is included to clarify that the Attorney-General's declaration
under new subsection 7(3AB) is not a legislative instrument within the meaning of
section 5 of the Legislative Instruments Act 2003. This exemption is to ensure that the
locations of emergency services facilities are not publicly available.
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
potential risks.
Part 2 - Interception by radiocommunications inspectors
The purpose of this Part is to create a limited exception to the general prohibition
against the interception of communications to allow the interception (without a
warrant) by the Australian Communications Authority (the ACA) when it is fulfilling
its statutory obligations under the Radiocommunications Act 1992.
Items 5-7
Items 5-7 amend subsection 7(2) of the Interception Act to provide that an incidental
interception of a communication by a person who is an inspector for purposes of
section 267 of the Radiocommunications Act 1992 is not prohibited by the general
prohibition against interception.
While a radiocommunication network is not generally subject to the Interception Act,
the Interception Act will apply where a radiocommunication network is connected to
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the telecommunications system. To the extent that the Interception Act applies to a
radiocommunications network, the ACA is prevented from intercepting
radiocommunications where they interconnect with fixed line telecommunications.
An example in which such a situation has arisen is interference by a cordless phone
system with aircraft communications at a metropolitan airport. This amendment will
remove an impediment to the effective performance of an important statutory function
with potentially significant consequences.
The exception is limited to interception in the performance of a spectrum management
function, or the exercise of a related power, under the Australian Communications
Authority Act 1997 or the Radiocommunications Act 1992, and that is in the course of
identifying the source of interference to critical radiocommunications frequencies.
Item 5 commences on Royal Assent if the ACMA Act has commenced before this Bill.
If the ACMA Act has not commenced before this Bill receives Royal Assent, then item
5 will not commence at all.
Item 6 commences on Royal Assent unless the ACMA Act has commenced before that
date, in which case item 6 will not commence at all.
Item 7, which commences immediately after the commencement of the ACMA Act,
amends new paragraph 7(2)(ae) consequential to the change in name from the ACA to
Australian Communication and Media Authority. In the event that the ACMA Act has
commenced before this Bill, then item 7 will not commence at all.
Part 3 - Ancillary offences
The purpose of this Part is to allow telecommunications interception warrants to be
obtained in connection with the investigation of the ancillary offence of accessory after
the fact for a class 1 offence.
Item 8
Class 1 and 2 offences are defined in subsection 5(1) and section 5D of the
Interception Act respectively. Class 1 offences include murder, kidnapping and
equivalent offences; narcotics offences; an offence constituted by conduct involving an
act or acts of terrorism; and offences in relation to which the Australian Crime
Commission is conducting a special investigation within the meaning of the Australian
Crime Commission Act 2002 (but only in relation to warrants sought by the ACC). It
also includes ancillary offences, such as aiding, abetting and conspiring to commit the
other class 1 offences.
This item expands the definition of class 1 offence in the Interception 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 to the commission of murder, kidnapping,
or narcotics or terrorism offences.
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At present the Interception Act does not allow law enforcement agencies to obtain a
telecommunications interception warrant to assist in the investigation of a person
suspected of being an accessory after the fact to the commission of a class 1 offence.
This means that an important investigative tool is not available to law enforcement
agencies investigating the activities of persons suspected of helping others who have
committed extremely serious criminal offences (including murder and kidnapping as
well as narcotics and terrorism offences) to evade justice or to dispose of the proceeds
of their crimes. The ability to obtain telecommunications interception warrants would
be a significant advantage for law enforcement agencies investigating persons
suspected of being an accessory after the fact to the commission of a class 1 offence
and would also assist in collecting valuable evidence for use in the investigation and
prosecution of the principal offender.
Part 4 - Civil forfeiture proceedings and named person warrants
The purpose of this Part is to implement the recommendations dealing with statistical
information for named-person warrants, reports by the Commonwealth Ombudsman
and civil-forfeiture regimes contained in the Report of the Review of Named Person
Warrants and Other Matters completed by Mr Tom Sherman AO in 2003.
Item 9
This item substitutes new paragraph 6K(c) of the Interception 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). The effect of
this amendment, which implements Recommendation 7 from the Sherman Report, is to
allow the use of lawfully obtained information in aid of civil forfeiture. This is
consistent with the increasing recognition, both within Australia and internationally,
that civil forfeiture is an important weapon in counteracting organised crime.
For administrative efficiency, item 9 removes the list of Acts previously contained in
paragraph 6K(c) and provides the power to prescribe by regulation such
Commonwealth, State or Territory Acts as are necessary. The regulation will be a
legislative instrument and subject to Parliamentary scrutiny.
Item 10
This item amends section 84 of the Interception Act to require the Ombudsman (as an
inspecting authority) to include in its annual report to Parliament 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
amendment implements Recommendation 6 of the Sherman Report.
The matters to be contained in the Ombudsman's report are to deal solely with
substantive matters that affect the integrity of the telecommunications interception
regime, not merely administrative matters such as folio numbering.
This amendment does not expand the functions of the Ombudsman as prescribed by
section 82 of the Interception Act.
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The Ombudsman remains subject to section 63 of the Interception Act and cannot
therefore divulge lawfully obtained information or designated warrant information.
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Item 11
This item will make a technical drafting amendment to add "or" at the end of each
paragraph in subsection 100(1) of the Interception Act.
Item 12
This item amends subsection 100(1) of the Interception Act to require the Minister to
provide statistics for each financial year on applications for named person warrants.
The effect of this amendment, which implements Recommendation 4 of the Sherman
Report, is to ensure that the following statistics are included in the
Telecommunications Interception Annual Report in relation to named person warrants:
(a) number of applications;
(b) number of telephone applications;
(c) number of renewal applications;
(d) number of conditions/restrictions imposed by issuing authorities;
(e) number of warrants that authorised entry on premises;
(f) number of warrants that authorise interception of
(i) a single service;
(ii) 2 - 5 services;
(iii) 6 - 10 services;
(iv) more than 10 services; and
(g) the total number of services intercepted pursuant to named persons warrants.
While statistics are already kept for all Part VI warrants and these are set out in the
Telecommunications Interception Annual Report, the proposed amendment will
require the Annual Report to break the figures down for named person warrants to
provide additional information in relation to the named person warrants scheme.
Item 13
This item will make a technical drafting amendment to add "or" at the end of each
paragraph in subsection 100(2) of the Interception Act.
Item 14
This item amends subsection 100(2) of the Interception Act to require the Minister to
provide statistics for each financial year on applications for named person warrants.
The effect of this amendment is to ensure that the same statistics identified in relation
to each agency, as required by the amendments made by item 12, are presented in
aggregate for all intercepting agencies.
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Part 5 - Employee of carriers
The purpose of this Part is to clarify the expression "employee of a carrier" as it
appears in the Interception Act.
Item 15
This item inserts an explanation as to what is meant by the expression: an employee of
a carrier. The effect of this provision is to clarify that that expression includes anyone
who might not have been employed in a narrow strict legal sense by a carrier but who
is engaged by a carrier or whose services are made available to the carrier. For
example, it has always included someone who was engaged as a contractor by a carrier
or who did work for a carrier while employed by a company that is a subsidiary of, or
related to, the carrier. As this provision does not seek to alter the definition of
employee, it is proposed that the amendment take effect from the date of the
commencement of the Interception Act, that is, 1 June 1980.
The explanation will apply to all references to an employee of a carrier in the
Interception Act. For example, paragraph 47(b) of the Interception Act provides that a
telecommunications interception warrant does not authorise communications to be
intercepted while they are passing over a telecommunications system operated by a
carrier unless, inter alia, the interception takes place as a result of action taken by an
employee of the carrier. Subsection 61(1) of the Interception Act requires the
Managing Director or secretary of a carrier to issue a written certificate signed by him
or her setting out such facts as he or she considers relevant with respect to acts or
things done by, or in relation to, employees of the carrier in order to enable a warrant
to be executed. In these instances, the clarified concept of employee applies so that
work undertaken by a contractor, or work undertaken by an employee of a subsidiary
or related company will satisfy the requirements in those provisions.
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