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2008
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
TELECOMMUNICATIONS INTERCEPTION LEGISLATION AMENDMENT BILL 2008
EXPLANATORY MEMORANDUM
(Circulated by authority of the Attorney-General,
the Honourable Robert McClelland MP)
TELECOMMUNICATIONS INTERCEPTION LEGISLATION
AMENDMENT BILL 2008
OUTLINE
1. This Bill will amend the Telecommunications (Interception and Access) Act
1979 (the TIA Act) and the Surveillance Devices Act 2004 (the SD Act) to address
legal uncertainties about using legislative definitions to confer power to make an
authorisation by including an express power to make authorisations.
2. In Hong Kong Bank of Australia Ltd v Australian Securities Commission
(1992) 108 ALR 70 (the Hong Kong Bank case) the Full Federal Court considered
that subsection 597(1) of the Corporations Law which provided that reference to a
`prescribed person' included a reference to a person authorised by the Commission to
make applications under that section, could not be read as conferring power on the
Australian Securities Commission to make authorisations.
3. The definitions of `certifying officer', `certifying person' and `member of the
staff of a Commonwealth Royal Commission' in subsection 5(1) of the TIA Act and
the terms `appropriate authorising officer' and `law enforcement officer' in
subsection 6(1) of the SD Act include persons who are authorised in writing by a
designated office holder to perform certain functions on their behalf under the
relevant Act. For example, in relation to the Australian Federal Police, the term
`certifying officer' includes `the Commissioner of Police, a Deputy Commissioner of
Police or a senior executive AFP employee who is a member of the Australian Federal
Police and who is authorised in writing by the Commissioner of Police for the
purposes of this paragraph.'
4. Legal advice obtained by the Attorney-General's Department indicates that
these definitions can be distinguished from the provision considered in the Hong
Kong Bank case. However, there is still some risk a court would find that subsection
5(1) of the TIA Act and subsection 6(1) of the SD Act do not confer power on
designated office holders to make authorisations. Any uncertainty will, however, be
removed if the TIA Act and the SD Act were amended to include a provision
expressly conferring power on office holders to make authorisations for the purposes
of these Acts.
5. In the absence of an express power the validity of actions undertaken by
officers purportedly authorised under subsection 5(1) of the TIA Act or subsection
6(1) of the SD Act could be open to question. These functions include the ability to
issue evidentiary certificates to be tendered in evidence in an `exempt proceeding' as
prima facie evidence of the matters stated in the document and notification
requirements relating to the operation of interception and stored communications
warrants.
6. The amendments to the TIA and SD Acts to expressly confer power on office
holders to make authorisations for the purposes of the Acts do not alter or expand the
powers of security or law enforcement agencies in relation to these activities. Rather,
they are necessary to provide certainty for actions taken under subsection 5(1) of the
TIA Act by persons who under the law as it existed at the time were regarded as being
authorised to act in this manner and who an authorising officer intended should act on
their behalf.
7. Similar issues apply in relation to the subsection 6(1) of the SD Act, which
uses some of the definitions from subsection 5(1) of the TIA Act. For instance, the
term `law enforcement officer' includes a `staff member of the Australian
Commission for Law Enforcement Integrity who is authorised in writing by the
Integrity Commissioner'. This means that despite the intention that such officers
should be able to apply for a surveillance devices warrant (section 14 of the SD Act),
there is some risk a court could find that an officer was not authorised to do so. The
specific authorisation powers inserted into the SD Act by this Bill will ensure the
validity of all actions undertaken pursuant to these provisions consistent with the
Act's current intention. The amendments will preserve the status quo and do not
increase the powers or functions available to `law enforcement officers' or
`appropriate authorising officers' or the agencies they work for, nor do they increase
the range of office holders who are authorised to perform these powers and functions.
8. In order to ensure the validity of actions taken by any such persons under the
TIA Act and the SD Act, the Bill also amends both Acts to insert specific
authorisation powers and to treat previous authorisations as if they had been made
under those powers.
9. This Bill will also make several technical amendments to the TIA Act to
maintain the currency of the telecommunications interception and access regime. The
Bill will amend the TIA Act to reflect Victoria's enactment of a separate statute for
the Office of Police Integrity and to delete references in the TIA Act to sections
previously removed by the Telecommunications (Interception) Amendment Act 2006.
FINANCIAL IMPACT STATEMENT
The amendments made by the Telecommunications Interception Legislation
Amendment Bill 2008 will have no financial impact.
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NOTES ON CLAUSES
Clause 1 Short title
Clause 1 is a formal provision specifying the short title of the Bill. It provides that the
Act may be cited as the Telecommunications Interception Legislation Amendment
Bill 2008.
Clause 2 Commencement
This clause provides for the commencement of the Bill.
Sections 1 to 3 will commence on the day on which this Act receives the Royal
Assent.
Schedule 1 will commence on the day after this Act receives the Royal Assent.
Schedule 2 items 1 to 11, 13, 21 and 25 to 27 will commence on the day after this Act
receives the Royal Assent.
Schedule 2 items 12, 14 to 20 and 22 will commence on the later of: (a) the start of
the day after this Act receives the Royal Assent; and (b) immediately after the
commencement of section 5 of the Police Integrity Act 2008 of Victoria. Items 12, 14
to 20 and 22 will not commence at all if section 5 of the Police Integrity Act 2008 of
Victoria does not commence.
Schedule 2 items 23 and 24 will commence on the day on which this Act receives the
Royal Assent.
Clause 3 Schedule(s)
Clause 3 provides that each Act that is specified in a Schedule is amended or repealed
as set out in that Schedule.
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Schedule 1 - Surveillance Devices Act 2004
Items 1 to 7, 8 and 9 to 10 - Authorisation of statutory power
Subsection 6(1) of the SD Act is the interpretation section of that Act.
Currently the definitions of `appropriate authorising officer' and `law enforcement
officer' include persons who are authorised in writing by a designated officeholder to
perform certain functions on their behalf under the SD Act. For example, in relation
to the Australian Federal Police, the term `appropriate authorising officer' includes a
person for the time being holding office or acting as `a senior executive AFP
employee who is authorised in writing by the Commissioner for the purposes of this
subparagraph'.
In Hong Kong Bank of Australia Ltd v Australian Securities Commission (1992) 108
ALR 70, the Full Federal Court considered that a similarly worded provision in the
Corporations Law could not be read as conferring power on the relevant authority to
make the authorisation referred to in the provision. Rather, the authority could only
authorise another person to act on their behalf where the power to make such an
authorisation was expressly conferred.
Consistent with the outcome in the Hong Kong Bank case, items 1-7 identify a person
who is specifically authorised under sections 6A or 6B of the SD Act as inserted by
item 8 of this Bill as being an `appropriate authorising officer' or `law enforcement
officer'.
Item 8 inserts new sections 6A and 6B at the end of section 6 of the SD Act. These
sections address the decision in the Hong Kong Bank case by conferring express
powers on designated officers to authorise other persons to act on their behalf for the
purposes of the SD Act. These provisions will ensure that authorisations are valid and
that persons authorised under the SD Act to act as an `appropriate authorising officer'
or a `law enforcement officer' can legally exercise their prescribed functions.
Items 9 and 10 ensure the validity of actions previously taken by persons authorised
under the definitions of `appropriate authorising officer' and `law enforcement
officer' in subsection 6(1) of the SD Act as they existed before the commencement of
this Bill. These items treat previous authorisations as if they had been made under the
express authorisation powers inserted by Item 8 of this Bill.
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Schedule 2 - Telecommunications (Interception and Access) Act 1979
Items 1 to 11, 13, 21 and 25 to 27 - Authorisation of statutory power
Subsection 5(1) of the TIA Act is the interpretation section of that Act.
Currently the definitions of `certifying officer', `certifying person' and `member of
the staff of a Commonwealth Royal Commission' include persons who are authorised
in writing by a designated officeholder to perform certain functions on their behalf
under the TIA Act. For example, in relation to the Australian Federal Police, the term
`certifying officer' includes `the Commissioner of Police, a Deputy Commissioner of
Police or a senior executive AFP employee who is a member of the Australian Federal
Police and who is authorised in writing by the Commissioner of Police for the
purposes of this paragraph'. In Hong Kong Bank of Australia Ltd v Australian
Securities Commission (1992) 108 ALR 70, the Full Federal Court considered that a
similarly worded provision in the Corporations Law could not be read as conferring
power on the relevant authority to make the authorisation referred to in the provision.
Rather, the authority could only authorise another person to act on their behalf where
the power to make such an authorisation was expressly conferred.
Consistent with the outcome in the Hong Kong Bank case, Items 1 to 11 identify a
person who is specifically authorised under section 5AC, 5AD or 5AE of the TIA Act
as inserted by item 21 of this Bill as being a `certifying officer', `certifying person' or
`member of the staff of a Commonwealth Royal Commission'.
Item 21 inserts new sections 5AC, 5AD and 5AE at the end of section 5AB of the TIA
Act. These sections address the decision in the Hong Kong Bank case by conferring
express powers on designated officers to authorise other persons to act on their behalf
for the purposes of the TIA Act. These provisions will ensure that authorisations are
valid and that persons authorised under the TIA Act to act as a `certifying officer',
`certifying person', or `member of the staff of a Commonwealth Royal Commission',
can legally exercise their prescribed functions.
Items 25 to 27 ensure the validity of actions previously taken by persons authorised
under the definitions of `certifying officer', `certifying person' and `member of the
staff of a Commonwealth Royal Commission' in subsection 5(1) of the TIA Act as
they existed before the commencement of this Bill. These items treat previous
authorisations as if they had been made under the express authorisation powers
inserted by Item 21 of this Bill.
Items 12 and 14 to 20 - Office of Police Integrity (Victoria)
The TIA Act provides for certain law enforcement and oversight agencies to intercept
telecommunications for certain purposes. Subsection 5(1) of the Act identifies each
oversight agency by reference to an agency's enabling legislation. One of these
agencies is the Victorian Office of Police Integrity which is identified in subsection
5(1) as being `the Office of Police Integrity established by the Police Regulation Act'.
Following a report by the Special Investigations Monitor, the Victorian Parliament is
in the process of establishing the Office as a stand alone authority under separate
legislation.
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Items 12 and 14 to 20 replace references in subsection 5(1) of the TIA Act to the
Police Regulation Act with the new legislation so as to preserve the Office's powers
and functions under the TIA Act.
Item 22 - Subparagraph 39(2)(ea)(ii)
Item 22 makes a consequential amendment to paragraph 39(2)(ea)(ii) as a result of
Item 15 of the Bill which identifies the Office of Police Integrity as being `the Office
of Police Integrity established by the Police Integrity Act 2008'.
Item 23 - Section 97
Section 97 of the TIA Act imposes reporting obligations on Managing Directors of
communications carriers in relation to certain warrants including warrants issued
under sections 45 and 45A of the Act. However, sections 45 and 45A were repealed
by the Telecommunications (Interception and Access) Amendment Act 2006 as
amendments made by that Act mean that telecommunication service and named
person warrants are now issued under section 46 and section 46A of the TIA Act.
Item 23 of this Bill removes the reference in section 97 to sections 45 and 45A so that
service carriers are not required to report against redundant provisions.
Item 24 - Paragraph 123(2)(b)
Paragraph 123(2)(b) of the TIA Act relates to the revocation of a stored
communications warrant. Due to a drafting error, the provision incorrectly requires
an instrument of revocation to be certified by a `certifying person' which is defined
under the TIA Act as one of a group of employees of the Australian Security
Intelligence Organisation. The effect of this drafting error was to require an ASIO
officer to certify the instruments of revocation of other interception agencies.
The provision should instead require an instrument of revocation to be certified by a
`certifying officer' who is defined as being an officer of the Senior Executive Service
or an equivalent rank in the relevant law enforcement agency that obtained the
warrant.
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