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2016 - 2017
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
INVESTIGATION AND PROSECUTION MEASURES BILL 2017
EXPLANATORY MEMORANDUM
(Circulated by authority of the
Attorney-General, Senator the Honourable George Brandis QC)
INVESTIGATION AND PROSECUTION MEASURES BILL 2017
GENERAL OUTLINE
1. The Investigation and Prosecution Measures Bill 2017 (the Bill) will make two sets of
amendments:
First, it will amend the Telecommunications (Interception and Access) Act 1979
(the TIA Act) and the Surveillance Devices Act 2004 (the SD Act) to support a
restructure of the Independent Commission Against Corruption
of New South Wales (the Commission).
Secondly, it extends the functions, powers and duties of the Commonwealth
Director of Public Prosecutions (CDPP) to the laws of Norfolk Island.
2. The Bill comprises two schedules:
Schedule 1 addresses the amendments relevant to the Commission, and
Schedule 2 addresses the amendments relevant to the CDPP's functions, powers
and duties on Norfolk Island.
Schedule 1 - Independent Commission Against Corruption of New South Wales
3. The Bill will make minor amendments to the TIA Act and the SD Act to reflect a
restructuring of the Commission made by the Independent Commission Against Corruption
Amendment Act 2016 (NSW) (the ICAC Amendment Act). That Act restructured the
Commission to replace the former arrangement of a single Commissioner and Assistant
Commissioners. The re-formed Commission consists of a full-time Chief Commissioner and
two part-time Commissioners. Assistant Commissioners may also be appointed.
4. The Commission investigates and exposes corrupt conduct in the public sector,
prevents corruption through advice and assistance as permitted, and educates the community
and public sector about corruption and its effects.
5. Schedule 1 is comprised of four parts:
Part 1 addresses definitions
Part 2 amends the TIA Act
Part 3 amends the SD Act, and
Part 4 deals with general transitional provisions.
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Telecommunications (Interception and Access) Act 1979
6. The TIA Act provides the legal framework for specified intelligence and law
enforcement agencies to access communications and data for the investigation of criminal
offences and other activities that threaten safety and security.
7. It permits criminal law enforcement agencies, including the Commission, to obtain
warrants to intercept communications, to obtain warrants to access stored communications, to
issue domestic preservation notices and to access telecommunications data.
8. The TIA Act vests certain positions within the Commission specific authority. The
Chief Commissioner will, for example, be able to authorise members of the Commission to
receive information gathered under warrants and communicate intercepted information
obtained by the Commission to other agencies in limited circumstances. The amendments
will allow the Chief Commissioner, a Commissioner or an Assistant Commissioner to be
certifying officers under the Act. Certifying officers can, for example be delegated the power
to revoke interception and stored communication warrants, certify true copies of warrants and
issue evidentiary certificates.
Surveillance Devices Act 2004
9. The SD Act governs the use of optical surveillance devices, listening devices, data
surveillance devices and tracking devices by law enforcement agencies. The Act
complements the relevant surveillance devices laws of the states and territories by allowing
law enforcement agencies such as the Commission to obtain surveillance device warrants to
help investigate federal offences and state offences with a federal aspect.
10. The SD Act vests certain positions within the Commission specific authority when
undertaking functions under the Act. The Chief Commissioner will, for example have the
power to revoke surveillance device warrants, and authorise executive level officers to be
authorising officers. Commissioners and Assistant Commissioners will also be designated as
authorising officers under the Bill. Authorising officers may, for example, issue emergency
authorisations for the use of a surveillance device, authorise the use and retrieval of tracking
devices without warrant in certain circumstances and issue evidentiary certificates.
Schedule 2 - Functions and powers of the Commonwealth Director of Public Prosecutions in
relation to Norfolk Island
11. The Director of Public Prosecutions Act 1983 (the DPP Act) establishes the CDPP
and provides for the functions, powers and duties of that office. The DPP Act is currently
limited in its extension to Norfolk Island. The Bill will make minor amendments to the
DPP Act to extend the functions, powers and duties of the CDPP to the laws of
Norfolk Island.
The Bill expands the CDPP's functions held in relation to laws of the Commonwealth, to
laws that are in force, or were in force, from time to time in Norfolk Island. The Bill also
validates things done under the Director of Public Prosecutions Regulations 1984, as
amended by the Director of Public Prosecutions Amendment (Norfolk Island)
Regulations 2017, in the circumstance that the amending regulations are found to be invalid.
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FINANCIAL IMPACT
12. The Bill will have no financial impact.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Investigation and Prosecution Measures Bill 2017
13. This Bill is compatible with the human rights and freedoms recognised or declared in
the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011. To the extent that the measures in the Bill may limit those rights and freedoms,
such limitations are reasonable, necessary and proportionate in achieving the intended
outcomes of the Bill.
Schedule 1 - Independent Commission Against Corruption of NSW
Overview of the Bill
14. The Bill will make minor amendments to the TIA Act and the SD Act to reflect a
restructuring of the Commission made by the Independent Commission Against Corruption
Amendment Act 2016 (NSW). That Act restructured the Commission to replace the former
arrangement of a single Commissioner and Assistant Commissioners. The re-formed
Commission consists of a full-time Chief Commissioner and two part-time Commissioners.
Assistant Commissioners may also be appointed as required.
15. The Bill makes no substantive changes to the Commission's powers under the TIA
Act and SD Act.
16. The Commission has previously been declared as an interception agency under the
TIA Act and is included in the definition of 'criminal law enforcement agency' for the
purposes of section 110A of the TIA Act. A declaration as an interception agency and
inclusion as a criminal law enforcement agency enables officers of the Commission to:
apply for interception warrants to assist in the investigation of serious offences,
(generally defined as offences punishable by at least seven years' imprisonment)
issue preservation notices in order to preserve communications where a stored
communications warrant will be sought
apply for stored communications warrants to assist in the investigation of serious
contraventions, generally defined as offences punishable by at least three years'
imprisonment
seek access to telecommunications data where reasonably necessary for the
enforcement of the criminal law, a law imposing a pecuniary penalty or for the
protection of the public revenue, and
17. The Commission will also remain a law enforcement agency for the purposes of the
SD Act. Consequently, by virtue of the SD Act, designated law enforcement officers within
the Commission can obtain warrants, emergency authorisations and tracking device
authorisations for the use of surveillance devices in relation to criminal investigations and
other specified purposes.
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Human rights implications
Right to privacy
18. The Acts that this schedule of the Bill amends engage the right to privacy (Article 17
of the International Covenant on Civil and Political Rights (ICCPR)). That article provides
that no-one shall be subjected to arbitrary or unlawful interference with his or her privacy,
family, home or correspondence, nor to unlawful attacks on his or her honour or reputation,
and that everyone has the right to the protection of the law against such interference or
attacks.
19. Interferences with privacy may be permissible, provided that they are authorised by
law and not arbitrary. In order for an interference with the right to privacy not to be arbitrary,
the interference must be for a reason consistent with the provisions, aims and objectives of
the ICCPR and be reasonable in the particular circumstances. The United Nations Human
Rights Committee has interpreted 'reasonableness' in this context to mean that 'any
interference with privacy must be proportional to the end sought and be necessary in the
circumstances of any given case'.
20. The exercise of electronic surveillance powers by the Commission is not arbitrary
within the meaning of Article 17. Interception of telecommunications and access to stored
communications may only occur subject to a warrant issued by an independent issuing
authority (a judge or member of the Administrative Appeals Tribunal). When deciding
whether a warrant should be issued the issuing authority must have regard to several factors,
including: the privacy impacts; the gravity of the offence; the extent to which other
investigative methods are available, and the likely usefulness of the information to the
relevant investigation.
21. Authorised officers are required to consider similar factors before authorising the
disclosure of telecommunications data. Authorised officers must be satisfied that the
disclosure of telecommunications data is reasonably necessary for the enforcement of the
criminal law, protection of the public revenue or for the enforcement of a law imposing a
pecuniary penalty and that any interference with the privacy of any person is justifiable and
proportionate.
22. Warrants under the SD Act may only be issued by an eligible judge or nominated
member of the Administrative Appeals Tribunal. The person issuing the warrant must have
regard to a range of factors, including the extent to which the privacy of any person is likely
to be affected and the existence of alternative means to obtaining the evidence or information.
Authorisations for the use of surveillance devices are available in emergency circumstances,
including where there are serious risks to a person or property, urgent circumstances relating
to a recovery order or there is a risk that evidence will be lost in relation to certain defined
offences. The approval of a judge or member of the Administrative Appeals Tribunal must be
sought within 48 hours after the emergency authorisation is given.
Freedom of expression
23. The Acts to be amended also engage the right to freedom of expression (Article 19
of the ICCPR). This article including the right 'to seek, receive and impart information and
ideas of all kinds' and extends to any medium, including written and oral communications,
the media, public protest, broadcasting, artistic works and commercial advertising. The
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means of communication listed in Article 19(2) are not exhaustive and the right to freedom of
expression has been interpreted as including means of communication such as the contents of
phone conversations.
24. Article 19(3) provides that the right to freedom of expression may be subject to
restrictions for specified purposes provided in the right, including the protection of national
security or public order (which includes prevention of disorder and crime) where such
restrictions are provided by law (that is, set down in formal legislation or an equivalent
unwritten norm of common law) and are necessary for attaining one of these purposes.
25. The requirement of 'necessity' implies that any restriction must be proportionate to
the purpose sought to be achieved. Limitations on freedom of expression on the grounds of
public order include limitations for the purpose of preventing crime. In order for the laws to
be considered a necessary restriction on freedom of expression on the grounds of public
order, the restriction must be clearly defined.
26. The Acts that this Bill amends may be seen to indirectly limit the right to freedom of
expression, as some persons may be more reluctant to use telecommunications services to
seek, receive and impart information if they know that data about their communications may
be accessed. Likewise a person may reluctant to communicate with others if they believe that
they may be subject to a surveillance device.
27. However, these Acts aim to prevent criminal activity by ensuring that law
enforcement and intelligence agencies have access to communications and associated
information central to virtually every organised crime, counter espionage, cyber security and
counter-terrorism investigation. Electronic surveillance is also used in almost every serious
criminal investigation, such as murder, rape and kidnapping. The provisions in the Acts
therefore fall within the scope of a specified purpose for which the freedom of expression
may be limited.
28. To the extent that the Acts have the effect of limiting the right to freedom of
expression, the limitation is designed for the legitimate objective of protecting public order.
The Acts limit the extent to which the right to freedom of expression is interfered with by
ensuring that there are strict controls on access to communications or the use of surveillance
devices. The Acts also limit which agencies that may access communications, or use
surveillance devices.
Schedule 2 - Functions and powers of the Director of Public Prosecutions in
Norfolk Island
Overview of the Bill
29. The Bill will amend the DPP Act to provide that the CDPP's functions, powers and
duties extend to the laws of Norfolk Island. The Australian Government has committed to
providing to Norfolk Island a level of services comparable to those enjoyed by Australians in
other similar-sized communities. The Bill will contribute to delivering this commitment by
allowing the CDPP to perform prosecutorial, and related functions, in relation to
Norfolk Island laws. This will allow prosecutions against Norfolk Island laws to be dealt with
by a professional and independent prosecution service with significant technical expertise,
akin to normal prosecution practices provided by the Commonwealth Government on
mainland Australia and in the other external Territories.
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Human Rights Implications
30. The Bill extends existing Commonwealth prosecutorial arrangements applicable on
mainland Australia to Norfolk Island, such that the CDPP may institute, carry on or take over
proceedings in relation to laws of Norfolk Island if he or she so wishes. The nature of the
CDPP's functions, powers and duties remain unchanged. As such, the bulk of the measures in
relation to the CDPP do not engage any of the applicable rights or freedoms.
31. Item 3 of Schedule 2 clarifies that any reference to a law of a Territory in the
DPP Act, or an instrument made under that Act, includes a reference to a law in force in
Norfolk Island at any time, whether before or after the commencement of the item. Item 4 of
Schedule 2 validates things done under the Director of\ Public Prosecutions
Regulations 1984, as amended by the Director of Public Prosecutions Amendment
(Norfolk Island) Regulations 2017, if the latter regulations are found to be invalid.
32. These items have the potential to engage the prohibition against retrospective criminal
laws in Article 15(1) of the ICCPR. Article 15(1) provides that:
No one shall be held guilty of any criminal offence on account of any act or omission which
did not constitute a criminal offence, under national or international law, at the time when it
was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the
time when the criminal offence was committed. If, subsequent to the commission of the
offence, provision is made by law for the imposition of the lighter penalty, the offender shall
benefit thereby.
33. The prohibition relates to someone being held guilty of a criminal offence that was
not a criminal offence when the criminal conduct occurred, or being given a heavier penalty
than that which was applicable at the time of the offence. It does not extend to retrospective
changes to procedure, practice or rules that do not affect the criminality of conduct or
punishment to which an offender is liable. These measures in the Bill do not change any
criminal offences, penalties or sanctions applicable to those subject to the laws of
Norfolk Island. As such, they do not infringe the prohibition against retrospective criminal
laws.
Conclusion
34. The Bill is compatible with human rights because it, and therefore the Acts it amends,
will promote rights and, to the extent that the Bill may also limit rights, those limitations are
reasonable, necessary and proportionate to the objective of ensuring law enforcement and
national security agencies have the tools they need to conduct investigations and keep
Australians safe.
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NOTES ON CLAUSES
Clause 1 - Short title
35. Clause 1 provides for the short title of the Act to be the Investigation and Prosecution
Measures Act 2017.
Clause 2 - Commencement
36. Clause 2 sets out when the various parts of the Act will commence, as described in the
table.
37. Item 1 in the table provides that sections 1 to 3, and anything in the Act not elsewhere
covered by the table, will commence on the day the Act receives Royal Assent.
38. Item 2 in the table provides that Schedule 1, which amends the TIA Act and SD Act,
will commence the later of the day the Act receives Royal Assent and the day the
Independent Commission Against Corruption Amendment Act 2016 (the ICAC Amendment
Act) commences. However, the provisions do not commence at all if the ICAC
Amendment Act does not commence. Item 3 also provides that Schedule 2, which amends the
DPP Act, will commence the day after the Act receives Royal Assent.
Clause 3 - Schedules
39. Clause 3 provides that each Act specified in a Schedule to the Act is amended or
repealed as set out in the Schedule. Any other item in a Schedule has effect according to its
terms. This provision is technical to give operational effect to the amendments contained in a
Schedule.
SCHEDULE 1 - INDEPENDENT COMMISSION AGAINST CORRUPTION OF
NEW SOUTH WALES
PART 1 - DEFINITIONS
40. Part 1 of Schedule 1 defines the difference between the 'new Commission' and 'old
Commission'. The new Commission means the Commission on and after the commencement
of the ICAC Amendment Act. The old Commission means the Commission before the
commencement of the ICAC Amendment Act.
PART 2 - TELECOMMUNICATIONS (INTERCEPTION AND ACCESS) ACT 1979
Division 1 - Amendments
Item 10 - Subsection 5(1) (subparagraph (e)(i) of the definition of certifying officer)
41. This subparagraph defines certifying officer for the purposes of the Act. This
amendment ensures that the re-structured Commission is referenced properly in this
definition.
Item 15 - Subsection 5(1) (paragraph (e) of the definition of chief officer)
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42. This paragraph defines chief officer for the purposes of the Act. This amendment
ensures that the re-structured Commission is referenced properly in this definition to mean
the Chief Commissioner.
Item 20 - Subsection 5AC(6) - Authorisation of certifying officers
43. Section 5AC allows the authorisation of certifying officers. This amendment ensures
that the re-structured Commission is referenced properly in this definition to allow the Chief
Commissioner to authorise certifying officers.
Item 25 - Paragraph 68(ea) - Chief officer may communicate information obtained by
agency
44. Section 68 relates to the communication of lawfully intercepted information or
interception warrant information by the chief officer of an agency (or other person authorised
by them) and who may receive that information. This amendment ensures that the
re-structured Commission is referenced properly in this paragraph to allow the Chief
Commissioner to communicate and receive lawfully intercepted information and interception
warrant information.
Division 2 - Transitional provisions
Item 30 - Warrants issued to the old Commission
45. This item provides that a warrant issued to the old Commission under the TIA Act,
that was issued before the commencement of this Schedule and was in force immediately
before that commencement, continues in force (and may be dealt with) on and after that
commencement as if it had been issued to the new Commission.
Item 35 - Authorisations made by an authorised officer of the old Commission
46. This item provides that an authorisation made by an authorised officer of the old
Commission under Division 4 of Part 4-1 of the TIA Act, that was issued before the
commencement of this Schedule and was in force immediately before that commencement,
continues in force (and may be dealt with) on and after that commencement as if it had been
made by an authorised officer of the new Commission.
Item 40 - Preservation notices given by the old Commission
47. This item provides that a domestic preservation notice given by the old Commission
under the TIA Act, that was issued before the commencement of this Schedule, that was in
force immediately before that commencement, continues in force (and may be dealt with) on
and after that commencement as if it had been given by the new Commission.
Item 45 - Evidentiary certificates issued by a certifying officer of the old Commission
48. This item provides that a written certificate issued by a certifying officer of the old
Commission under sections 61, 107U, 130 or 185C of the TIA Act, that was issued before the
commencement of this Schedule, was in force immediately before that commencement,
continues in force (and may be dealt with) on and after that commencement as if it had been
issued by a certifying officer of the new Commission.
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Item 50 - Transfer of information acquired under the TIA Act
49. This item applies to specified types of information acquired by the old Commission
under the TIA Act before, on or after the commencement of this Schedule. The amendment
provides that nothing in in any law of the Commonwealth prevents the Commissioner of the
old Commission from communicating that information to the new Commission on or after its
commencement.
PART 3 - SURVEILLANCE DEVICES ACT 2004
Division 1 - Amendments
Item 55 - Subsection 6A(7) (table item 10) - Law enforcement agencies
50. Section 6A uses tables to define law enforcement agency, chief officer (of the law
enforcement agency), law enforcement officer (of the law enforcement agency) and
appropriate authorising officer (of the law enforcement agency). This amendment ensures
that the re-structured Commission is referenced properly in these definitions. The
amendments are that the Chief Commissioner is now the chief officer, and the
Chief Commissioner, a Commissioner or an Assistant Commissioner (in addition to the
current situation of an authorised executive level officer) are appropriate authorising officers.
Division 2 - Transitional provisions
Item 60 - Warrants issued to a law enforcement officer of the old Commission
51. This item provides that a warrant issued under the SD Act to a law enforcement
officer who belonged to or was seconded to the old Commission, that was issued before the
commencement of this Schedule, was in force immediately before that commencement,
continues in force (and may be dealt with) on and after that commencement as if it had been
issued to a law enforcement officer who belonged to or was seconded to the new
Commission.
Item 65 - Authorisations given by an appropriate authorising officer of the old
Commission
52. This item provides that an emergency authorisation or tracking device authorisation
that was given under the SD Act by an appropriate authorising officer of the old Commission,
that was given before the commencement of this Schedule and was in force immediately
before that commencement, continues in force (and may be dealt with) on and after that
commencement as if it had been given by an appropriate authorising officer of the new
Commission.
Item 70 - Evidentiary certificates issued by an appropriate authorising officer of the old
Commission
53. This item provides that a written certificate issued under section 62 of the SD Act by
an appropriate authorising officer of the old Commission, or by a person assisting an
appropriate authorising officer of the old Commission, that was issued before the
commencement of this Schedule and was in force immediately before that commencement,
continues in force (and may be dealt with) on and after that commencement as if it had been
issued by an appropriate authorising officer of the new Commission.
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Item 75 - Transfer of information acquired under the SD Act
54. This item applies to information acquired by the old Commission before, on or after
the commencement of this Schedule and is protected information (within the meaning of the
SD Act), or any other information or documents lawfully acquired by the old Commission
under that Act. The amendment provides that nothing in any law of the Commonwealth
prevents the Commissioner of the old Commission from communicating that information to
the new Commission on or after its commencement.
PART 4 - GENERAL TRANSITIONAL PROVISIONS
Item 80 - Things done or not done by, or in relation to, the old Commission
55. This item provides that for the purposes of a law of the Commonwealth, anything
done or not done before the commencement of this Schedule by, or in relation to, one set of
persons, has effect on and after that commencement as if it had been done or not done by, or
in relation to, a nominated set of persons.
56. The item also clarifies reporting arrangements. Reports due after the commencement
of these amendments, that relate to activities that started before the commencement, must
include the period before the commencement.
Item 85 - Minister may make rules
57. This item provides that the Minister may, by legislative instrument, make rules
prescribing matters of a transitional nature (including prescribing any saving or application
provisions) relating to the amendments or repeals made by this Schedule, the abolition of the
old Commission (so far as it is relevant to an Act amended by this Schedule) or the
establishment of the new Commission (so far as it is relevant to an Act amended by this
Schedule).
58. To avoid doubt, this item explains that rules may not:
create an offence or civil penalty
provide powers of arrest or detention, or entry, search or seizure
impose a tax
set an amount to be appropriated from the Consolidated Revenue Fund under an
appropriation in this Act, or
directly amend the text of this Act.
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SCHEDULE 2 - FUNCTIONS AND POWERS OF DIRECTOR OF PUBLIC
PROSECUTIONS IN NORFOLK ISLAND
PART 1 - AMENDMENT OF THE DIRECTOR OF THE DIRECTOR OF PUBLIC
PROSECUTIONS ACT 1983
Item 1 - Subsection 3(1) (paragraph (b) of the definition of law of the Commonwealth)
59. This item amends the definition of 'law of the Commonwealth' by repealing the
limitation in relation to the Norfolk Island Act 1979 contained in paragraph (b) of
subsection 3(1) of the DPP Act.
Item 2 - Subsection 3(1) (paragraph (c) of the definition of law of the Commonwealth)
60. This item amends the definition of 'law of the Commonwealth' by omitting the clause
'paragraph (aa), (a) or (b)', and substituting it with 'paragraph (aa) or (a)' to reflect the
amendment in item 1.
PART 2 - REFERENCES TO A LAW OF A TERRITORY
Item 3 - References to a law of a Territory
61. This item clarifies that, for the purposes of the DPP Act and any instrument made
under that Act, that a reference to a law of a Territory includes a reference to a law in force in
Norfolk Island at any time, whether before or after the commencement of this item.
PART 3 - VALIDATION OF THINGS DONE UNDER THE DIRECTOR OF PUBLIC
PROSECUTIONS AMENDMENT (NORFOLK ISLAND) REGULATIONS 2017
62. This item validates things done under the Director of Public Prosecutions
Regulations 1984, as amended by the Director of Public Prosecutions Amendment
(Norfolk Island) Regulations 2017, if the latter regulations are found to be invalid.
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