Scrutiny of Bills Seventeenth Report of 1999
20 October 1999
ISSN 0729-6258
MEMBERS OF THE COMMITTEE
Senator B Cooney (Chairman)
Senator W Crane (Deputy Chairman)
Senator T Crossin
Senator J Ferris
Senator B Mason
Senator A Murray
TERMS OF REFERENCE
Extract from Standing Order 24
(1)
(a) At the commencement of each Parliament, a Standing Committee for
the Scrutiny of Bills shall be appointed to report, in respect of the
clauses of bills introduced into the Senate, and in respect of Acts of
the Parliament, whether such bills or Acts, by express words or otherwise:
(i) trespass unduly on personal rights and liberties;
(ii) make rights, liberties or obligations unduly dependent upon insufficiently
defined administrative powers;
(iii) make rights, liberties or obligations unduly dependent upon non-reviewable
decisions;
(iv) inappropriately delegate legislative powers; or
(v) insufficiently subject the exercise of legislative power to parliamentary
scrutiny.
(b) The Committee, for the purpose of reporting upon the clauses of a
bill when the bill has been introduced into the Senate, may consider any
proposed law or other document or information available to it, notwithstanding
that such proposed law, document or information has not been presented
to the Senate.
SENATE STANDING COMMITTEE FOR THE SCRUTINY OF BILLS
SEVENTEENTH REPORT OF 1999
The Committee presents its Seventeenth Report of 1999 to the Senate.
The Committee draws the attention of the Senate to clauses of the following
bill which contains provisions that the Committee considers may fall within
principles 1(a)(i) to 1(a)(v) of Standing Order 24:
Telecommunications (Interception) Amendment Bill 1999
Telecommunications (Interception) Amendment Bill 1999
Introduction
The Committee dealt with this bill in Alert Digest No. 14 of 1999,
in which it made various comments. The Attorney-General has responded
to those comments in a letter dated 18 October 1999. A copy of the letter
is attached to this report. An extract from the Alert Digest and
relevant parts of the Attorney-General's response are discussed below.
Extract from Alert Digest No. 14 of 1999
This bill was introduced into the House of Representatives on 2 September
1999 by the Attorney-General. [Portfolio responsibility: Attorney-General]
The bill proposes to amend the Telecommunications (Interception) Act
1979 and the Telecommunications (Interception) and Listening Device
Amendment Act 1997 to permit the Anti-Corruption Commission of Western
Australia (ACC) and the Queensland Crime Commission (QCC) to:
- receive intercepted information originally obtained by another agency
where that information appears to relate to conduct that the ACC or
QCC may investigate;
- use intercepted information for an investigation it is undertaking
in relation to its functions;
- obtain warrants to intercept information, provided the Attorney-General
first issues a declaration under section 34 of the Interception Act;
and
- permit the Minister to continue to nominate specified members of the
AAT to issue interception warrants for law enforcement.
General comment
This bill proposes to further increase the number of agencies entitled
to receive and use information gained from the interception of telecommunications.
The core provision of the Telecommunications (Interception) Act 1979
is section 7. This section prohibits the interception of communications
passing over a telecommunications system. The balance of the Act as originally
passed set out certain specified exceptions to this provision in “special
circumstances”. These exceptions were intended to achieve the objects
of the bill, which was introduced as part of a legislative package to
reform the powers of ASIO, and to facilitate the investigation of narcotics
offences (see Senate, Hansard, 8 March 1979, pp 646-649).
The Act has since been amended to widen the number of exceptions to section
7, and to increase the range of “special circumstances”. For
example, in 1992 there were four exceptions in the balance of section
7. By 1998, these exceptions had grown to eight.
In Alert Digest No 7 of 1997, this Committee considered the Telecommunications
(Interception) and Listening Devices Amendment Bill 1997. In discussing
that bill, the Committee expressed its concern at the proposed extension
to the Police Integrity Commission of access to the telecommunications
interception powers. The Committee observed that that bill was “again
an extension of an intrusive power and, as such, a fresh example of legislative
creep”.
This bill now seeks to extend access to the telecommunications interception
powers to the Anti-Corruption Commission of Western Australia and the
Queensland Crime Commission. It is yet another “fresh example of
legislative creep”.
While conscious of the need to adequately investigate “corruption
by public officials, paedophilia and organised crime”, which is the
explanation for the latest extensions, and while remaining conscious of
the safeguards contained elsewhere in the Act, the Committee seeks
the Attorney-General's advice as to the reasons for the continuous
weakening of the prohibition contained in section 7 of the Principal Act,
and the continuous extension of access to the Act's exceptional powers.
Pending the Attorney's advice, the Committee draws Senators' attention
to these provisions, as they may be considered to trespass unduly on personal
rights and liberties, in breach of principle 1(a)(i) of the Committee's
terms of reference.
Extract from the response from the Attorney-General
The Committee is concerned that conferring eligible authority status
on the Western Australian Anti-Corruption Commission (ACC) and the Queensland
Crime Commission (QCC) might be an extension of an intrusive power by
legislative creep. I do not believe this is the case.
The QCC was established under the Crime Commission Act 1997 (QLD).
It has a responsibility to investigate criminal paedophilia and major
and organised crime. The proposed amendments to the Telecommunications
(Interception) Act 1979 (the Act) dealing with the QCC will not permit
any wider use of telecommunications interception than is currently possible.
The Bill merely takes into account the decision of the Queensland Parliament
to transfer responsibilities for investigating organised and major crime
from the Queensland Criminal Justice Commission (CJC) to the QCC. In performing
its statutory functions, in relation to organised and major crime, the
QCC will not have any powers under the Act which were not available to
the CJC for the same purpose. The amendments also support the use of telecommunications
interception for the investigation of criminal paedophilia. The QCC's
investigations in this area are special circumstances which warrant an
exception from the provisions in section 7 of the Act.
The ACC is established by the Anti-Corruption Commission Act 1988
(WA). The ACC's role includes the receiving of or initiating allegations
of corrupt conduct, criminal conduct, criminal involvement or serious
improper conduct about police officers and other public officers. The
matters which the ACC investigate are of a serious nature and require
the best tools of investigation. I consider that enabling the ACC to receive
intercepted material and, if declared, to undertake interception in its
own right, is an exception to section 7 of the Act which constitutes the
special circumstances envisaged when the Act was originally passed.
Experience has shown that covert surveillance is one of the most powerful
investigative tools for uncovering and prosecuting crime. In the 1997/98
Telecommunications (Interception) Act's Annual Report, the following results
were reported:
- 625 arrests on the basis of information that was or included lawfully
obtained information;
- 451 prosecutions on the basis of lawfully obtained information;
- 329 convictions on the basis of lawfully obtained information;
- 4 prosecutions on the basis of lawfully obtained information by eligible
authorities of a State; and
- 2 convictions on the basis of lawfully obtained information by eligible
authorities of a State.
The Committee thanks the Attorney-General for this response which addresses
most of its concerns. However, it is not clear whether the Queensland
Criminal Justice Commission is to retain any interception powers under
this bill in addition to those interception powers to be conferred on
the Queensland Crime Commission. The Committee would appreciate the
Attorney's further advice on this issue.
Barney Cooney
Chairman
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