2. The Committee's review
   1. This chapter reviews the Bill in more detail and outlines the evidence received and the Committee’s comments and recommendations in relation to each of the Bill’s five schedules.

Schedule 1 – seizure of digital assets

2.2Schedule 1 to the Bill would amend the Crimes Act 1914 (Crimes Act) and the Proceeds of Crimes Act 2002 (POCA) to expressly authorise police, when executing search warrants, to seize digital assets, such as cryptocurrency, including by accessing a person’s digital wallet and transferring its contents.

2.3The Explanatory Memorandum notes that digital assets are being increasingly used to enable crime:

Law enforcement agencies have identified an increase in criminals’ use of digital assets (including cryptocurrency) to facilitate their offending and as a means to hold and distribute the benefits derived from their offending. Investigations involving digital assets have been associated with a variety of crime types including the purchase of drugs, child exploitation material and firearms through dark web markets; ransomware and cyber related offences; and money laundering and financing of terrorist organisations.[1]

2.4The Australian Federal Police (AFP) informed the Committee that it ‘frequently encounters’ digital assets, including cryptocurrencies, being used to ‘hold and distribute the benefits of illicit activities’.[2] The AFP highlighted a 2023 disruption of a ‘large-scale Australian money laundering organisation’ (codenamed Operation AVARUS-MIDAS), under which the AFP ‘executed 13 warrants and charged 10alleged offenders, with approximately $215 million in criminal assets restrained to-date, including over $30 million in cryptocurrency’. The AFP added that it had restrained more than $41 million in cryptocurrency across the 2022–23 financial year, which equated to ‘approximately 11.7 per cent of all AFP restraints in this period’.[3]

2.5The Bill’s amendments are intended to ‘enhance the legal framework’ for such digital assets to be seized.[4] The AFP submitted that Schedules 1 and 2 to the Bill would assist the work of its dedicated Cryptocurrencies Capability Team, as well as assisting ‘all AFP members who may encounter digital assets and digital currencies in the course of their investigations and proceeds of crime litigation’.[5]

Amendments to Crimes Act search warrant powers

2.6The Bill would amend the search warrant powers available to the AFP and state and territory police under section 3E of the Crimes Act. Section 3E warrants authorise police to search a premises or a person if the issuing officer is satisfied that there are reasonable grounds for suspecting that there is, or there will be within the next 72 hours, any evidential material at the premises or in the person’s possession.[6] ‘Evidential material’ is defined as ‘a thing relevant to an indictable offence or a thing relevant to a summary offence, including such a thing in electronic form’.[7] The issuing officer for the warrant may be either a magistrate, or a justice of the peace or other employee of a State or Territory court who is authorised to issue search warrants.[8]

2.7The things currently authorised by a search warrant are listed in section 3F of the Crimes Act. For warrants issued in relation to premises, these include entering the premises, taking fingerprints and other forensic samples, searching for and seizing evidential material, and (if authorised under the warrant) conducting ordinary or frisk searches of persons at or near the premises.[9] Since new computer-related search provisions were introduced by the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 1979 (TOLA Act) in December 2018,[10] police are also authorised to:

• use a computer, telecommunications facility, data storage device or other electronic equipment for the purpose of obtaining access to data held on a computer or data storage device found during the search[11]
• add, copy, delete or alter other data in the computer or device, if necessary in order to obtain access to data held in a computer or device found during the search[12]
• use a third party computer or communication in transit to access the relevant data (and, if necessary, to add, copy, delete or alter other data in that computer or communication) if reasonable in all the circumstances, having regard to other methods (if any) of obtaining access to the relevant data which are likely to be as effective[13]
• use a computer, telecommunications facility or other electronic equipment for the purpose of accessing account-based data in relation to the user of a computer found during the search;[14] to add, copy, delete or alter other data if necessary to achieve that purpose;[15] and, if reasonable in all the circumstances, to use a third party computer or communication in transit to access the relevant account-based data[16]
• move a computer or data storage device from the warrant premises to another place for examination, ‘in order to determine whether it may be seized under a warrant’, for up to 30 days.[17]
  8. Schedule 1 to the Bill proposes to further extend the things authorised by a search warrant to account for digital assets, such as cryptocurrency. Proposed new section 3FA of the Crimes Act provides express authority for police to seize a digital asset if:
• the executing officer or constable assisting finds one or more things that suggest the existence of the digital asset,
• the officer or constable reasonably suspects the digital asset to be ‘evidential material’[18] or ‘tainted property’[19], and
• the officer or constable reasonably suspects that seizing the digital asset is necessary to prevent its ‘concealment, loss or destruction or its use in committing an offence’.[20]
  9. Using provisions modelled on the existing computer-related search provisions introduced by the TOLA Act, proposed new section 3FA also provides authority for police to:
• use a computer, telecommunications facility, data storage device or other electronic equipment for the purpose of seizing a digital asset[21]
• use a computer, telecommunications facility, data storage device or other electronic equipment for the purpose of obtaining access to data held on a computer or data storage device found during the search, in order to determine whether the data suggests the existence of a digital asset that may be seized[22]
• use a computer, telecommunications facility or other electronic equipment for the purpose of accessing account-based data in relation to the user of a computer found during the search, in order to determine whether the data suggests the existence of a digital asset that may be seized.[23]
  10. Similarly to the existing provisions, the proposed new powers include the authority for police to add, copy, delete or alter other data, if necessary, and to use a third party computer or communication in transit, if reasonable in all the circumstances.[24] Like the existing powers,[25] the exercise of the new powers must not ‘materially interfere with, interrupt or obstruct’ a communication in transit or the lawful use by other persons of a computer unless ‘necessary’ for executing the warrant; and it must not cause ‘any other material loss or damage to other persons lawfully using a computer’.[26]
  11. ‘Seizing’ a digital asset is defined non-exhaustively to include any of the following:

(a) transferring the digital asset from an existing digital wallet (or some other thing) to a digital wallet (or other thing) controlled by the Australian Federal Police or a police force or police service of a State or Territory;

(b) transferring the digital asset:

(i) from a digital wallet (or some other thing) recreated or recovered by the Australian Federal Police or a police force or police service of a State or Territory using things found in the course of the search authorised by the warrant; and

(ii) to a digital wallet (or other thing) controlled by the Australian Federal Police or a police force or police service of a State or Territory;

(c) transferring the digital asset in circumstances prescribed by regulations made for the purposes of this paragraph.[27]

2.12The Attorney-General’s Department emphasised that these amendments would not grant additional powers to agencies, but instead ‘ensure the existing powers available to law enforcement can account for the increasing prevalence of digital assets in law enforcement operations’.[28]

2.13The AFP added that the Schedule 1 amendments would ‘ensure provisions relating to the seizure of evidential material and tainted property under warrant reflect the complexities involved in searching for, and seizing, digital assets’,[29] including by

• providing ‘a framework that better addresses the circumstances in which law enforcement may come across digital assets in the course of exercising search warrant powers’, and
• ‘more accurately reflecting the steps that need to be taken by law enforcement when seizing digital assets’.[30]
  14. The term ‘digital asset’ is intended to capture a range of assets that ‘could hold value and be capable of restraint or forfeiture action under the POCA’.[31] It is defined in the Bill as follows:

digital asset means:

(a) a digital representation of value or rights (including rights to property), the ownership of which is evidenced cryptographically and that is held and transferred electronically by:

(i) a type of distributed ledger technology; or

(ii) another distributed cryptographically verifiable data structure; or

(b) a right or thing prescribed by the regulations;

but does not include any right or thing that, under the regulations, is taken not to be a digital asset for the purposes of this Part.[32]

2.15The Explanatory Memorandum notes that the first part of the definition ‘reflects the definition used by the Australian Securities and Investments Commission to administer the Australian financial services licensing regime’, and the second part of the definition is ‘designed to provide the flexibility to expand and tailor the definition as technology and the use of digital assets in criminal offending evolves’.[33] It states:

A regulation-making power is justified in this context because digital assets are highly technical, ever-evolving and uncertain. The regulation-making power will ensure the legislation is future-proofed and able to adapt to technological developments and innovations.[34]

2.16The Attorney-General’s Department submitted that the definition of ‘digital asset’ is ‘flexible enough to encompass both the terms that are currently used in the crypto-asset industry like coins, stablecoins and tokens, and those that may emerge as the technology evolves’.[35]

Amendments to POCA search warrant powers

2.17Schedule 1 proposes similar amendments to the things authorised by POCA search warrants, which currently do not have express provisions authorising access to data held on computers.[36] A POCA search warrant is issued by a magistrate on application by an authorised officer of the AFP, the National Anti-Corruption Commission (NACC), the Australian Criminal Intelligence Commission, the Australian Border Force, the Australian Securities and Investments Commission or the Australian Taxation Office.[37] POCA search warrants authorise these agencies to enter premises; take fingerprints and other forensic samples; search for and seize ‘tainted property’,[38] ‘evidential material’,[39] or things believed to be relevant to unexplained wealth proceedings; and (if authorised under the warrant) conduct an ordinary or frisk search of a person at or near the premises.[40]

2.18The Bill proposes to authorise officers executing POCA search warrants to:

• seize a digital asset, if

• the executing officer or person assisting finds one or more things that suggest the existence of the digital asset, and
• the officer or person assisting reasonably suspects the digital asset to be tainted property or evidential material, and
• the officer or constable reasonably suspects that seizing the digital asset is necessary to prevent its ‘concealment, loss or destruction or its use in committing an offence’,[41]

• use a computer, telecommunications facility, data storage device or other electronic equipment for the purpose of seizing the digital asset,[42] and
• use a computer, telecommunications facility, data storage device or other electronic equipment for the purpose of obtaining access to data held on a computer or data storage device found during the search, in order to determine whether the data suggests the existence of a digital asset that may be seized.[43]
  19. Consistent with Crimes Act search warrants, the proposed new powers include the authority for officers to add, copy, delete or alter other data, if necessary; and to use a third party computer or communication in transit, if reasonable in all the circumstances.[44] The same limitations on material interference and material loss or damage also apply.[45] The terms ‘seizing’ and ‘digital asset’ are defined consistently with the proposed definitions in the Crimes Act, discussed above.[46]

Consequential amendments to the NACC Act

2.20Schedule 1 also makes consequential amendments to the National Anti-Corruption Commission Act 2022 (NACC Act).[47] Under the existing NACC Act, for the purposes of a corruption investigation, an authorised officer of the NACC who is not a constable is able to exercise the Crimes Act’s search powers,[48] subject to certain modifications.[49] The Bill makes consequential amendments to these modifications to reflect the proposed changes to the Crimes Act discussed above. The Explanatory Memorandum explains that the intent of the amendments is to

allow the NACC to seize digital assets that afford evidential materials of:

• the offence or corruption issue in relation to which the warrant was issued,
• any indictable offence, or
• a corruption issue being investigated by the NACC other than the one to which the warrant relates.[50]

Committee comment

2.21The Committee supports the amendments proposed by Schedule 1 to the Bill. The Committee notes evidence from the AFP about the increasing prevalence of cryptocurrencies in criminal investigations. The proposed amendments do not grant substantive new powers to the AFP or state and territory police to address this issue, but rather amend the existing search powers to make explicit that they can be applied in relation to digital assets, including cryptocurrency, in the same way as physical assets. This will help the legislation keep up with technological change, ensuring it remains fit for purpose in the modern environment.

2.22The Committee did not receive any submissions opposing the proposed amendments.

2.23The Committee has previously examined the Crimes Act search warrant powers in its reviews of the TOLA Act in 2019 and 2021, as well as its 2020 inquiry into press freedom.[51] In its report on the press freedom inquiry, the Committee recommended an expanded role for Public Interest Advocates in relation to search warrants concerning journalists or media organisations, and that such warrants be required to be issued by a judge of a superior court.[52] The Committee notes that this recommendation was agreed to by the Government but is yet to be implemented in legislation.[53]

Schedule 2 – digital currency exchanges

2.24Schedule 2 to the Bill seeks to amend the POCA to extend the investigative and freezing powers that currently apply to financial institutions to also apply in relation to certain digital currency exchanges. The Bill achieves this by amending the existing POCA definition of ‘financial institution’ to include a corporation that provides a digital currency exchange.[54] The Bill also amends the definition of ‘account’ to include:

(ea) an account relating to *digital currency, including:

(i) an account representing an amount of digital currency; and

(ii) an account provided as part of a *digital currency exchange.[55]

2.25The Bill expressly provides that it is ‘immaterial’ whether the balance of the account is expressed as an amount of digital currency, Australian currency or any other currency.[56]

2.26‘Digital currency’ and ‘digital currency exchange’ are defined by reference to existing definitions in the Anti-Money Laundering and Counter-Terrorism Financing Act 2006.[57]

2.27The AFP explained that the amendments would ensure that POCA investigative powers—including freezing orders, monitoring orders and notices to financial institutions—can be used on Australian-based digital currency exchanges.[58] It stated that this would assist the AFP’s Criminal Assets Confiscation Taskforce to

more effectively identify digital currencies associated with criminal offending, and then freeze the relevant asset … to prevent the dissipation of that property (and prevent potential reinvestment or reuse in future criminal activity), before any restraint action can be taken under POCA.[59]

2.28The Attorney-General’s Department advised that the expansion of the POCA regime to include digital currency exchanges ‘retains existing safeguards’, including that

• freezing orders and monitoring orders are subject to independent oversight, such that the relevant orders must be made by a magistrate after considering whether the legislative requirements for making the order have been met
• the orders only operate for a set period of time and need to be reviewed by a magistrate if they are to be extended, and
• a magistrate would have the power to vary a freezing order to enable a financial institution to allow a withdrawal from the account to meet the reasonable living expenses of the person, dependents of the person, business expenses of the person, or a specified debt incurred in good faith by the person.[60]

Committee comment

2.29The Committee supports the amendments proposed by Schedule 2 to the Bill, which will ensure that POCA freezing orders and monitoring orders can be applied in relation to Australian-based cryptocurrency exchanges in the same way as to traditional financial institutions. Similarly to the Schedule 1 amendments, this will help ensure laws governing the investigation and seizure of proceeds of crime remain fit for purpose in the modern technological environment.

2.30No concerns about these amendments were raised in submissions to the Committee’s review.

Schedule 3 – Commonwealth penalty unit

2.31Schedule 3 to the Bill would amend section 4AA of the Crimes Act to increase the value of a Commonwealth penalty unit to $330,[61] with a commencement date of 1 July 2024.[62]

2.32Penalty units are used to describe the monetary penalties for all criminal offences across Commonwealth legislation and territory ordinances, including serious Commonwealth criminal offences such as importation of drugs, people smuggling, theft or destruction of Commonwealth property, and social security fraud.[63]Adjustments to the value of a penalty unit allows for the maximum monetary penalty for all offences to be adjusted with a single amendment.[64] The Bill’s Explanatory Memorandum states that:

Maintaining the value of the penalty unit over time ensures that financial penalties for Commonwealth offences reflect community expectations and continue to remain effective in deterring unlawful behaviour.[65]

2.33According to the Explanatory Memorandum, the current value of the penalty unit ‘does not act as an effective deterrent for the most serious offending’.[66] It states that increases to the value of the penalty unit since it was first instituted in 1992 represent an increase of 213 per cent, whereas average incomes have increased by 282 per cent during the same period.[67]

2.34To address this issue, the Bill proposes to increase the value of the penalty unit from $313 to $330.[68] The Attorney-General’s Department noted:

Increasing the value of a penalty unit does not curb the court’s existing discretion to impose a penalty that is appropriate with regard to all the circumstances. Rather, increasing the value of a penalty unit increases the maximum penalty that the court can impose as punishment for the most serious offending.[69]

2.35Existing subsection 4AA(3) of the Crimes Act provides that the value of a penalty unit is automatically indexed on 1 July every three years, in line with the increase in the consumer price index during the previous three years. The most recent indexation, which occurred on 1 July 2023, increased the value of the penalty unit from $275 to the current value of $313.[70]

2.36Table 2.1 shows how the value of the penalty unit has increased over time.

* Proposed under the Crimes and Other Legislation Amendment (Omnibus No. 1) Bill 2024

2.37In addition to increasing the value of a penalty unit to $330, the Bill includes an amendment to ensure that automatic indexation will continue to occur from the next scheduled date of 1 July 2026.[71]

Committee comment

2.38The Committee supports the proposed increase in the value of the Commonwealth penalty unit from $313 to $330, which will apply across the full range of Commonwealth offences carrying monetary penalties. Maintaining the value of the penalty unit over time helps ensure these penalties deter criminal behaviour and reflect community expectations, and the Committee received no submissions opposing the change.

2.39As noted above, the Explanatory Memorandum states that the increase is intended to address the current value of the penalty unit not acting as an effective deterrent for the most serious offending.

2.40The Bill provides for Schedule 3 to commence on 1July 2024. Noting this date has now passed, the Committee supports the Bill being amended to slightly delay the commencement. Having regard to the commencement dates for previous legislative amendments to the value of the penalty unit (as listed at Table2.1 above), the Committee notes there is no pressing need for an increase to start on 1July.[72]

Schedule 4 – Communications Access Coordinator and Communications Security Coordinator

2.41Schedule 4 to the Bill consists of amendments to the Telecommunications Act 1997 (Telecommunications Act) and the Telecommunications (Interception and Access) Act 1979 (TIA Act) intended to ‘clarify the functions of the Communications Access Coordinator (CAC) in the Attorney-General’s Department and create the position of Communications Security Coordinator (CSC) in the Department of Home Affairs’.[73]

2.42Currently, the CAC is defined in section 6R of the TIA Actas follows:

(1) In this Act:

Communications Access Co‑ordinator means:

(a) the Secretary of the Department; or

(b) if a person or body is covered by an instrument under subsection(2)—that person or body.

(2) The Minister may, by legislative instrument, specify a person or body for the purposes of paragraph (b) of the definition of Communications Access Co‑ordinator in subsection (1).

(3) Unless the context otherwise requires, an act done by or in relation to the Communications Access Co‑ordinator is taken to be an act done by or in relation to the Co‑ordinator on behalf of all the interception agencies and all the enforcement agencies.

2.43The ‘Department’ in this case is the Attorney-General’s Department, which has had responsibility for administering the TIA Act since June 2022, except to the extent that it is administered by the Department of Home Affairs in relation to the Australian Security Intelligence Organisation.[74] Similarly, the ‘Minister’ is now the Attorney-General.

2.44The CAC has various functions interspersed through the TIA Act, including

• determining, by legislative instrument, procedural requirements in relation to authorisations for the disclosure of telecommunications data[75]
• declaring that data retention obligations apply in relation to relevant services operated by a service provider[76]
• considering and approving data retention implementation plans[77]
• granting exemptions or variations to data retention obligations[78]
• coordinating with carriers and interception agencies the locations of delivery points for lawfully intercepted communications[79]
• granting exemptions to certain obligations concerning interception capabilities[80]
• considering and approving interception capability plans[81]
• receiving notifications from carriers and carriage service providers of certain proposed changes to telecommunications services or systems, and notifying agencies that may be interested[82]
• making determinations in relation to capabilities for the delivery of lawfully intercepted information to agencies.[83]
  45. The CAC also has functions under the Telecommunications Act, including
• being consulted by the Australian Communications and Media Authority on applications for carrier licences[84]
• exercising certain limited functions in relation to the industry assistance provisions in Part 15 of the Telecommunications Act[85]
• exercising functions under Part 14 of the Telecommunications Act, including

• receiving notifications from carriers and carriage service providers of proposed changes to their telecommunications services or systems that are ‘likely to have a material adverse effect’ on their capacity to comply with their obligations to, for the purposes of security, protect telecommunications networks and facilities from unauthorised interference or unauthorised access[86]
• assessing each proposed change for the risk of unauthorised interference or access, and notifying the relevant carrier or carriage service provider of the outcome of those assessments[87]
• receiving and assessing security capability plans provided by carriers or providers, and notifying the relevant carrier or carriage service provider of the outcome of those assessments.[88]
  46. Part 14 of the Telecommunications Act was introduced in 2017 under the Telecommunications Sector Security Reforms (TSSR), which were reviewed by this Committee.[89] The TSSR scheme is managed by the Cyber and Infrastructure Security Centre in the Department of Home Affairs.[90]
  47. The Department of Home Affairs described the administrative steps involved in sending Part 14 notifications to the Attorney-General’s Department for ‘clearance’ by the CAC as an ‘unnecessary increased burden for both departments’. It submitted that

The imposed burden has reduced the time available for assessments conducted by the Department [of Home Affairs] as it demands an extended period for clearance procedures. Given the significant national security function served by the notification obligation, the unnecessary administrative complexity of current arrangements poses direct national security risks and imposes unnecessary bureaucracy on agencies.[91]

2.48To address this issue, Schedule 4 to the Bill proposes to insert new section 7A into the Telecommunications Act to establish the new position of CSC within the Department of Home Affairs:

(1) In this Act:

Communications Security Coordinator means:

(a) the Home Affairs Secretary; or

(b) if a person or body is covered by an instrument made under subsection (2)—that person or body.

(2) The Home Affairs Minister may, by legislative instrument, specify one or more persons or bodies, or one or more classes of persons or bodies, for the purposes of paragraph (b) of the definition of Communications Security Coordinator in subsection (1).

(3) The Home Affairs Minister must only specify a person or class of persons in an instrument made under subsection (2) if the person is an [Australian Public Service (APS)] employee, or the class consists wholly of APS employees, in the Home Affairs Department.

Instrument must specify certain functions or powers

(4) An instrument made under subsection (2) must specify the functions or powers of a Communications Security Coordinatorunder this Act or any other Act that a person or body, or a class ofpersons or bodies, specified in the instrument may perform or 9 exercise.

(5) A person or body, or a class of persons or bodies, specified in an instrument made under subsection (2) may only perform the functions or exercise the powers specified in that instrument in relation to that person or body, or class of persons or bodies.[92]

2.49The Bill would confer on the CSC the functions that are currently conferred on the CAC under Part 14 of the Telecommunications Act.[93]

2.50The Attorney-General’s Department noted that the Bill ‘does not propose any new functions’, but rather:

aligns the performance of the existing functions under Part 14 with the responsibilities of the Attorney General’s Department and the Department of Home Affairs following changes to Administrative Arrangements in 2022. Currently the CAC (in the Attorney-General’s Department) relies entirely on advice from the Department of Home Affairs to perform these functions, which is an inefficiency this measure will address.[94]

2.51The other functions currently conferred on the CAC remain unchanged by the Bill. The Bill reframes the existing CAC definition in section 6R of the TIA Act in similar terms to the new CSC definition (set out above). It specifies that the CAC means the Secretary of the Attorney-General’s Department, or a person or body covered by a legislative instrument made by the Attorney-General.[95]

2.52Schedule 4 also contains a series of minor amendments to replace the existing references to ‘Communications Access Co-ordinator’ with ‘a Communications Access Coordinator’.[96] These amendments are intended to ‘reflect modern spelling’ and to ‘reflect that more than one person or body, or classes of persons or bodies, may be specified and carry out a particular function of the Communications Access Coordinator’.[97]

Committee comment

2.53The Committee supports the proposed amendments to the definition of Communications Access Coordinator (CAC) and the establishment of a new position of Communications Security Coordinator (CSC). The Committee notes that the Bill does not seek to create any new functions, but to transfer certain functions currently performed by the CAC under Part 14 of the Telecommunications Act to the CSC. The CAC’s other existing functions under the Telecommunications Act, and all its functions under the TIA Act, would remain with the CAC.

2.54Part 14 of the Telecommunications Act—known as the TSSR legislation—has been reviewed by the Committee on two previous occasions.[98] At the time it was introduced, the Attorney-General’s Department had responsibility for administering the scheme and it was appropriate for the CAC to perform functions under the scheme. This is no longer the case under current administrative arrangements. The TSSR regime is administered by the Department of Home Affairs alongside its other critical infrastructure functions, and the CAC relies entirely on the advice of the Department of Home Affairs to perform their functions in relation to Part14. The Committee therefore considers it appropriate that the legislation be amended to carve the TSSR-related functions from the CAC’s responsibilities and to confer them on the proposed new CSC.

2.55The Committee considers this a sensible change that accords with the existing administration of the TSSR regime and will improve administrative efficiency. No concerns were raised about Schedule 4 in submissions to the Committee’s review.

Schedule 5 – access to telecommunications intercept by state-based oversight agencies

Expanded information-sharing for state-based oversight bodies

2.56Schedule 5 to the Bill proposes to amend information-sharing provisions in the TIA Act to enhance the ability of bodies which oversight state-based integrity agencies to receive lawfully intercepted information and interception warrant information from agencies within their jurisdictions. The following oversight bodies are affected:

• Inspector of the Independent Commission Against Corruption (NSW)
• Inspector of the Law Enforcement Conduct Commission (NSW)
• Parliamentary Inspector of the Corruption and Crime Commission (WA)
• Victorian Inspectorate.[99]
  57. Section 63 of the TIA Act prohibits agencies from communicating, making use of, or making records of intercepted information or interception warrant information. However, lawfully intercepted information and interception warrant information may be communicated, used or recorded for certain ‘permitted purposes’ set out in section 67.[100] Additionally, the chief officer of an agency may communicate lawfully intercepted information or interception warrant information to other parties for the purposes listed in section 68.
  58. For the four oversight bodies listed above, the current ‘permitted purposes’ and purposes listed in section 68 cover only a limited subset of their functions.[101] For example, in the case of the Inspector of the Law Enforcement Conduct Commission (NSW), the ‘permitted purposes’ are limited to dealing with conduct amounting to agency maladministration, officer misconduct, or officer maladministration;[102] and the purposes listed in section 68 are limited to ‘if the information relates, or appears to relate, to a matter that may give rise to an investigation’.[103] This limits the ability of the Inspector to scrutinise and audit the Law Enforcement Conduct Commission’s interception powers and to ensure compliance with the TIA Act.[104]
  59. There are similar limitations on the use, disclosure and recording of intercepted information obtained under an international production order, or information that relates to an international production order, set out in the definition of ‘eligible purpose’ in Schedule 1 to the TIA Act.[105]
  60. The Committee heard from state-based oversight bodies that limitations in the current definitions of ‘permitted purpose’ and ‘eligible purpose’ are causing difficulty for them in discharging their functions. For example, the Parliamentary Inspector of the Corruption and Crime Commission (WA) submitted that he is ‘unable to monitor the Commission’s use of warrants under the [TIA Act] in any comprehensive way’. The Inspector explained:

This is because I may only receive and use interception warrant information and interception information where it relates to a matter of misconduct on the part of the Commission, an officer of the Commission or my own officers. These functions, which are a relatively small aspect of my overall role, are the only activities of my office presently included in the TIA Act’s definition of ‘permitted purpose’.

Accordingly, in any Commission files that I review on a matter that does not relate to these purposes, any interception warrant information or interception information must be redacted.[106]

2.61To address this issue, the Bill amends the definitions of ‘permitted purpose’ and ‘eligible purpose’ to cover a broader range of each agency’s functions.[107] The Bill also amends section 68 to authorise communication if the information ‘relates, or appears to relate, to a matter referred to’ in the applicable part of the definition of ‘permitted purpose’.[108] In relation to the Inspector of the Law Enforcement Conduct Commission (NSW), for example, the amended purposes include auditing the operation of the Law Enforcement Conduct Commission (NSW) and assessing the effectiveness and appropriateness of its policies and procedures, in addition to the existing purposes.[109]

2.62The amendments received support from state-based oversight bodies,[110] as well as some of the anti-corruption agencies that they oversee.[111] The Victorian Inspectorate, for example, submitted that the amendments are ‘important and necessary to remedy limitations’ on the Inspectorate’s current ability to access lawfully intercepted information and interception warrant information for its broad function of monitoring the Independent Broad-based Anti-corruption Commission’s compliance with its enabling Act and other laws.[112]

2.63The Independent Commission Against Corruption (NSW) advised that it had ‘consistently supported’ amendments to the TIA Act to enable its Inspector to have access to its telecommunication interception records.[113] It noted that:

The need for the ICAC Inspector to have access to interception warrant information and interception information held by the ICAC was identified in the ICAC Inspector's October 2020 report Telecommunications (Interception and Access) Act 1979 (Cth) - Serious Gap in Inspector's Powers. The ICAC Inspector there noted the long-standing deficiency in the current statutory scheme under the TIA Act whereby the ICAC Inspector is unable to access ICAC telecommunications interception material for the purpose of conducting an audit (as opposed to conducting a specific investigation).[114]

2.64In 2020, the then Inspector of the Independent Commission Against Corruption (NSW) had raised the need for relevant amendments to the TIA Act with both the Independent National Security Legislation Monitor and the Department of Home Affairs.[115] His predecessors had similarly identified the need for amendments from as early as 2009,[116] including in a submission to this Committee in 2012.[117]

2.65The Parliamentary Inspector of the Corruption and Crime Commission of Western Australia welcomed the changes in Schedule 5. However, the Parliamentary Inspector noted that the changes are not picked up in the definition of ‘prescribed investigation’ in section 5(1) of the TIA Act.[118] ‘Prescribed investigation’ forms part of the definition of ‘relevant offence’,[119] which defines circumstances in which the chief officer of an intercepting agency may communicate lawfully intercepted information and interception warrant information to a member of the AFP or state or territory police, or to the chief officer of another agency.[120] ‘Prescribed investigation’ also forms part of the TIA Act’s definition of ‘relevant proceeding’,[121] which in turn forms part of the definition of ‘permitted purpose’ in section 67.[122]

2.66The Parliamentary Inspector of the Corruption and Crime Commission of Western Australia submitted that the existing language in the definition of prescribed investigation, as it relates to the Parliamentary Inspector, is narrower than the language used in in relation to the other similar oversight bodies listed in that definition and excludes investigations that do not involve misconduct.[123] The Parliamentary Inspector explained:

By way of an example, a sizeable part of my workload involves assessing the effectiveness and appropriateness of the Commission’s procedures pursuant to section 195(1)(c) of the [Corruption, Crime and Misconduct Act 2003 (WA)]. This often requires me to investigate the manner in which the Commission has handled a complaint it has received from a member of the public. From time to time, following an investigation of this kind, I will conclude that the Commission has made material errors in the course of dealing with a complaint. However, in the absence of any misconduct by a Commission officer (as distinct from factors such as human error, negligence or inattention), such an investigation would not be a ‘prescribed investigation’ for the purposes of the TIA Act.[124]

2.67To address this issue, the Parliamentary Inspector proposed that the existing language of subsection 5(1), which defines a prescribed investigation as

dealing with a matter of misconduct in the performance of the Parliamentary Inspector’s functions under the Corruption and Crime Commission Act

be replaced with

an investigation that the Parliamentary Inspector is conducting in the performance of the Parliamentary Inspector’s functions under the Corruption, Crime and Misconduct Act 2003 (WA).[125]

2.68The Parliamentary Inspector argued that without this amendment, the intended outcome of the amendments ‘will only be partially realised’.[126]

2.69In response to a written question from the Committee, the Attorney-General’s Department agreed with the Parliamentary Inspector’s submission:

The department agrees with the Parliamentary Inspector that the drafting of this provision is inconsistent with analogous amendments applying to other oversight bodies within Schedule 5 of the Bill, and should be corrected. As noted in the Explanatory Memorandum (at paragraph 21), the intention of the measure is to expand the definition of ‘permitted purpose’ for each oversight body to align with the definition within the oversight bodies’ respective enabling legislation to accurately encompass their oversight functions [emphasis added].[127]

2.70The Law Enforcement Conduct Commission (NSW) supported the proposed amendments in Schedule 5, noting their significance in ‘ensuring holistic and robust oversight’ of its operations.[128] However, the Commission requested that the Committee consider extending the new disclosure powers to include stored communications information accessed under Chapter 3 of the TIA Act, and telecommunications data accessed under Chapter 4.[129] As drafted, Schedule 5 only permits the disclosure of information relating to telecommunications interception.

2.71In response to a written question from the Committee, the Attorney-General’s Department urged caution in relation to any extension to disclosure provisions:

As with intercepted information and interception warrant information, stored communications and telecommunications data contain sensitive information. As such, any extension to agencies’ ability to receive and use the information would need to be robustly justified as being necessary to the performance of that agency’s functions, balanced with the resulting impact on human rights such as the right to privacy and right to freedom of expression as outlined in the International Covenant on Civil and Political Rights (ICCPR).[130]

2.72Unlike for telecommunications interception, the Commonwealth Ombudsman has a statutory oversight function in relation to access to stored communications and telecommunications data which requires it to conduct inspections of the records of enforcement agency records to determine ‘the extent of compliance’ with the relevant TIA Act provisions.[131] The Attorney-General’s Department considered the benefit of extending access to stored communications and telecommunications data to state-based oversight agencies is therefore ‘less clear cut’ compared to interception information:

Given state and territory integrity agencies’ use of Chapters 3 and 4 of the TIA Act is already overseen by the Commonwealth Ombudsman, allowing those agencies’ oversight bodies to receive and use stored communications and telecommunications data would likely duplicate the role of the Commonwealth Ombudsman. This may be viewed as an unnecessary extension of the use and disclosure provisions for sensitive information obtained through covert surveillance.[132]

2.73The Attorney-General’s Department noted that an existing provision in the TIA Act which authorises the Commonwealth Ombudsman to give information obtained from its inspections to state-based oversight bodies may provide an avenue for those bodies to ‘be made aware of issues pertaining to the broader range of their functions without needing to receive and use stored communications or telecommunications data’.[133] However it added:

The department is open to consulting state and territory integrity agencies and their oversight bodies in relation to the suggestion proposed in the submission of the Law Enforcement Conduct Commission (NSW) before finalising a policy position. Such an amendment, if determined to be necessary following this consultation, could form part of wider electronic surveillance reforms to be undertaken by the department in response to the Comprehensive Review of the Legal Framework of the National Intelligence Community.[134]

Introducing information-sharing for the Inspector of the Independent Commission Against Corruption (SA)

2.74Schedule 5 to the Bill also adds the Inspector of the Independent Commission Against Corruption (SA) to the list of state-based oversight bodies that can receive lawfully intercepted information and interception warrant information.[135] Consistent with the proposed amendments relating to the other state-based oversight bodies covered by the TIA Act, the Bill proposes that the permitted purposes and eligible purposes for which information may be shared with the Inspector cover a broad range of functions. These include annual reviews, reviews relating to complaints, reviews conducted on the Inspector’s own motion and ‘other functions conferred on the Inspector’.[136]

2.75The Explanatory Memorandum advises that the ‘entirety’ of the Inspector of the Independent Commission Against Corruption (SA)’s oversight functions will be specified in the TIA Act, supporting its ability to ‘scrutinise and audit the interception activities of the South Australia Independent Commission Against Corruption and ensure it complies with its obligations under the TIA Act’.[137]

2.76The Attorney-General’s Department noted that the Inspector of the Independent Commission Against Corruption (SA) absorbed the functions of the former Reviewer of the Independent Commissioner Against Corruption in 2022.[138]

Minor amendments to specify jurisdictions

2.77Schedule 5 to the Bill also contains a series of minor amendments to specify, in the TIA Act’s description of certain state-based integrity agencies and their oversight bodies, the jurisdiction in which each agency or oversight body is established.[139] The affected agencies and oversight bodies are:

• Law Enforcement Conduct Commission (NSW)
• Corruption and Crime Commission (WA)
• Crime Commission (NSW)
• Crime and Corruption Commission (Qld)
• Independent Broad-based Anti-corruption Commission (IBAC) (Vic)
• Independent Commission Against Corruption (NSW)
• Inspector of the Independent Commission Against Corruption (NSW)
• Inspector of the Law Enforcement Conduct Commission (NSW)
• Parliamentary Inspector of the Corruption and Crime Commission (WA).
  78. The amendments include specifying the jurisdiction of agencies that fall within the definition of ‘criminal law enforcement agency’ in subsection 110A(1) of the TIA Act.[140] As noted in Chapter 1, these amendments were required under subsection 110A(11) of the TIA Act to be referred to the Committee for review. Under that subsection, if a Bill is introduced into either House of the Parliament that includes an amendment to subsection 110A(1) of the TIA Act, the Attorney-General must:

1. refer the amendment to the Committee; and
2. must not in that referral specify, as the period within which the Committee is to report on its review, a period that will end earlier than 15 sitting days of a House of the Parliament after the introduction of the Bill.
   79. Being listed as a criminal law enforcement agency under subsection 110A(1) of the TIA Act empowers an agency to

• issue a preservation notice to a telecommunications carrier requiring the carrier to preserve all communications it holds which relate to the person or telecommunications service specified in the notice,[141]
• apply to an independent issuing authority for a warrant to access stored communications (such as emails or SMS messages) to support an investigation of a ‘serious contravention’,[142]
• authorise the disclosure of historical telecommunications data where it is reasonably necessary for the enforcement of the criminal law or a law imposing a pecuniary penalty, for the protection of the public revenue, or for the finding of a missing person,[143] and
• authorise the disclosure of telecommunications data on a prospective basis for up to 45 days, where the disclosure is reasonably necessary for the investigation of a ‘serious offence’ or a criminal offence punishable by at least three years’ imprisonment.[144]
  80. The Attorney-General’s Department noted that Schedule 5’s amendments to subsection 110A(1) ‘do not change, or otherwise alter, the existing powers available to these agencies under the TIA Act’.[145]
  81. No concerns were raised by submitters in relation to these amendments, and several submitters expressed their support.[146] For example, the Law Enforcement Conduct Commission (NSW) submitted that the proposed amendments would ‘provide further clarity and distinguish between oversight and integrity agencies with similar names’.[147]

Committee comment

2.82The Committee welcomes the amendments in Schedule 5, which will improve the ability of oversight bodies for state-based integrity agencies to access material that has been lawfully intercepted under the TIA Act, and material related to interception warrants, in support of their important oversight functions. The amendments have the clear support of all integrity agencies and oversight bodies who participated in the inquiry.

2.83Notwithstanding this support, two suggestions for further amendments to the TIA Act were raised in submissions to the Committee.

2.84The Parliamentary Inspector of the Corruption and Crime Commission (WA) drew to the Committee’s attention a discrete issue concerning language used in the TIA Act’s definition of ‘prescribed investigation’, which does not appear to affect other agencies or their oversight bodies. The Committee notes that the Attorney-General’s Department agreed with the Parliamentary Inspector’s submission and did not identify any concerns with the proposed amendment. The Committee considers the Parliamentary Inspector’s request to be reasonable and therefore recommends that this matter be addressed in the Bill.

2.85The Committee recommends that the Bill be amended to provide that the definition of ‘prescribed investigation’ in section 5(1) of the Telecommunications (Interceptionand Access) Act 1979 include, for the purposes of the Parliamentary Inspector of the Corruption and Crime Commission of Western Australia, an investigation that the Parliamentary Inspector is conducting in the performance of the Parliamentary Inspector’s functions under the Corruption, Crime and Misconduct Act 2003 (WA).

2.86The Law Enforcement Conduct Commission (NSW) asked the Committee to consider whether, in addition to intercepted communications, the TIA Act should also authorise stored communications and telecommunications data held by state-based integrity agencies to be disclosable to their oversight bodies. The Committee supports this proposal in principle. The Committee considers that the bodies with holistic responsibility for oversight of state-based integrity agencies should generally be unhindered in their access to the information held by those agencies for the purpose of carrying out their functions.

2.87The Committee acknowledges the Commonwealth Ombudsman’s existing role of inspecting agencies, including state-based agencies, for compliance with the TIA Act’s requirements in relation to stored communications and telecommunications data. However, the Committee is conscious that the Commonwealth Ombudsman’s role, while important, does not extend to all questions that a body with holistic oversight of a state-based agency might seek to answer. For example, a state-based oversight agency may wish to inquire into whether the stored communications or telecommunications data an agency acquired under the TIA Act provided reasonable grounds to support the agency’s subsequent investigative activities under other legal regimes, which would be outside the Commonwealth Ombudsman’s remit.

2.88Nevertheless, the Committee considers that a further extension to the TIA Act’s disclosure provisions is outside the scope of this Bill. The Committee did not receive enough evidence in this inquiry to justify recommending immediate amendments. Any extension of the disclosure provisions to include stored communications and telecommunications data should follow broad consultation with affected parties and careful consideration of any privacy and security implications, as well as mechanisms to minimise duplication with the role of the Commonwealth Ombudsman.

2.89The Committee therefore recommends that the Government consider this matter for future legislative reform. The Government’s electronic surveillance reform project, which among other things aims to improve consistency within the current legislative framework,[148] would be an appropriate mechanism for considering how consistency can be improved regarding the way in which state-based oversight bodies can access information held by agencies within their jurisdiction.

2.90The Committee recommends that, as part of the proposed electronic surveillance reforms or other future reforms to the Telecommunications (Interceptionand Access) Act 1979, the Government consider whether state-based oversight bodies should be given access to stored communications and telecommunications data held by the agencies within their jurisdiction, in addition to the access to lawfully intercepted information and interception warrant information conferred by the Bill.

Mandatory referral of amendments to section 110A, 176A, 187A and 187AA of the TIA Act

2.91The Committee notes that items 153 to 158 of Schedule 5, which seek to amend subsection 110A(1) of the TIA Act, were required by subsection 110A(11) of the Act to be referred to the Committee for review. Subsection 110A(1) lists ‘criminal law enforcement agencies’, which are empowered to issue preservation notices, seek warrants for access to stored communications, and to internally authorise access to existing and prospective telecommunications data.

2.92In this instance, the Bill’s proposed amendments to subsection 110A(1) of the TIA Act are minor and cosmetic in nature. The amendments simply specify the jurisdiction in which each integrity body operates in parentheses after its name. The Committee has identified no concerns and does not make any recommendations for change in relation to these proposed amendments.

2.93However, this review raises the question of whether the mandatory referral provision in subsection 110A(11) of the TIA Act is working as intended. Subsection 110A(11) was added to the TIA Act in 2015, as a result of a recommendation by the Committee in its Advisory Report on the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014.[149] In the context of concerns raised by submitters about the power of the Minister to declare, by legislative instrument, additions to the list of agencies under subsection 110A(1),[150] the Committee recommended as follows:

The Committee recommends that criminal law-enforcement agencies, which are agencies that can obtain a stored communications warrant, be specifically listed in the Telecommunications (Interception and Access) Act 1979.

To provide for emergency circumstances, the Committee recommends that the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014 be amended so that the Attorney-General can declare an authority or body as a criminal law-enforcement agency subject to the following conditions:

• the declaration ceases to have effect after 40 sitting days of either House;
• an amendment to specify the authority or body as a criminal law-enforcement agency in legislation should be brought before the Parliament before the expiry of the 40 sitting days; and
• the amendment should be referred to the Parliamentary Joint Committee on Intelligence and Security with a minimum of 15 sittings days for review and report.[151]
  94. The Committee also made nearly identical recommendations in relation to amendments to

• the definition of ‘enforcement agency’ in section 176A of the TIA Act,[152] which lists agencies authorised to access telecommunications data under internal authorisation,[153]
• the scope of services to which data retention obligations apply,[154]which is set out in section 187A(3) of the TIA Act, and
• the data set that is required to be retained under the data retention scheme,[155] which is prescribed by subsections 187A(4) and 187AA of the TIA Act,

all of which may be amended via Ministerial declaration.[156]

2.95As with subsection 110A(1), Ministerial declarations under subsection 176A(1), 187A(3A) and 187AA(2) cease after 40 sitting days,[157] and any amendments to primary legislation must be referred to the Committee for review.[158]

2.96Prior to the current review, the Committee has been referred three other amendments to subsection 110A(1) of the TIA Act for review:

• On 18 November 2016, following a review, the Committee supported an amendment to include the Law Enforcement Conduct Commission (NSW) in the list of criminal law enforcement agencies in subsection 110A(1), in lieu of the former Police Integrity Commission which it replaced.[159]
• On 29 March 2023, the Committee reported on its review of an amendment to subsection 110A(1) to include the National Anti-Corruption Commission in lieu of the Australian Commission for Law Enforcement Integrity. The Committee made recommendations directed at ensuring adequate protection of parliamentary privilege and security of information.[160]
• On 29 March 2023, the Committee was referred an amendment which substituted ‘Independent Commissioner Against Corruption’ for ‘Independent Commission Against Corruption (SA)’ in subsection 110A(1).[161] The Committee declined to conduct an inquiry into the amendment.
  97. None of the above amendments were preceded by a Ministerial declaration before the Bill was introduced to amend the primary legislation.
  98. The Committee understands that the intent of the mandatory referral provisions in sections 110A and 176A is to ensure that the agencies which are authorised to access stored communications and telecommunications data are appropriately restricted, and that any proposed additions are subject to scrutiny. While the Committee continues to accept that it is appropriate for the responsible Minister to have the power to declare additional agencies on an ‘emergency’ basis (for example, in response to a temporary requirement or to account for changes in agency structures or functions that cannot be reflected in primary legislation in a timely manner), it is important that such declarations are subject to adequate scrutiny.
  99. As at May 2024, there had been no declarations under sections 110A, 187A or 187AA of the TIA Act. Only one agency had been subject to a declaration, under section 176A: in February 2022, the NSW Department of Communities and Justice was declared to be an ‘enforcement agency’ for the purpose of s 176A in relation to Corrective Services NSW.[162] The same organisation was subject to a new declaration in March 2023 and again in May 2024.[163] These declarations were not subject to review by the Committee, as the legislation only requires that Bills which seek to amend the primary legislation be referred to the Committee for review.
  100. Following the February 2022 declaration, the Minister for Home Affairs introduced a Bill into the Parliament which would have inserted new section 176B into the TIA Act to include state and territory corrective services authorities within the definition of ‘enforcement agency’, giving them access to telecommunications data on an ongoing basis, subject to a request from the relevant state or territory minister and a separate declaration by the Minister for Home Affairs.[164] The Bill was referred to the Committee for review, but lapsed shortly after at the end of the 46th Parliament. Since then, no legislation has been brought before the Parliament to list Corrective Services NSW (or any other corrective services authority) as an enforcement body on an ongoing basis.
  101. The Committee has no reason to doubt the appropriateness of the declaration of Corrective Services NSW: in 2019, the Comprehensive Review of the Legal Framework of the National Intelligence Community recommended that, as part of the development of a new electronic surveillance Act, corrective services authorities should be granted the power to access telecommunications data, if the relevant state or territory government considers it to be necessary ‘having regard to the effectiveness of any existing arrangements in place within their jurisdiction’.[165] The Corrective Services Administrators’ Council has also previously written to the Committee setting out a case for state and territory corrective services authorities to have ‘enforcement agency’ status.[166] However, the fact that Corrective Services NSW has been subject to multiple declarations without legislative change means that

1the parliamentary scrutiny process that would have applied if Corrective Services NSW had been listed in primary legislation has not occurred, and

2the lawful access to telecommunications data by Corrective Services NSW has been subject to interruptions due to gaps between declarations, given the expiry of each after 40 sitting days.[167]

2.102To address these issues, the Committee recommends that the TIA Act should be amended to require that declarations made under sections 110A, 176A, 187A and 187AA be referred to the Committee for review within the 15 sitting day parliamentary disallowance period, similarly to other legislative instruments in respect of which the Committee has a review function.[168] The declarations should continue to cease after 40 sitting days, as currently occurs. Consistent with the Committee’s 2015 recommendations, the Committee continues to expect that, where ongoing access by an organisation is justified, an amendment to the primary legislation will be brought forward.

2.103In relation to the primary legislation, the Committee does not consider it necessary that all proposed amendments to sections 110A, 176A, 187A and 187AA be mandatorily referred to the Committee for review. While there are some occasions where detailed review by this Committee may be warranted—for example, the recent amendment to include the National Anti-Corruption Commission in subsection 110A(1)—those amendments are capable of being referred to the Committee by the relevant Minister in the same way as other bills within the Committee’s remit. In any case, subject to passage of the Intelligence and Security Legislation Amendment Bill 2023, the Committee will have the power to self-initiate inquiries into future amendments insofar as they are related to counter-terrorism or national security.

2.104The Committee therefore recommends that the above provisions be amended to require the referral of all Ministerial declarations to the Committee for review, while removing the mandatory referral of amendments to the provisions in the primary legislation. To avoid delaying the commencement of the current Bill, the Committee considers these amendments could be put forward as part of separate reforms to the TIA Act in a future Bill.

2.105The Committee recommends that, as part of future reforms, the Government consider amending sections 110A, 176A, 187A and 187AA of the Telecommunications (Interception and Access) Act 1979 to:

• require that if a Minister makes a declaration by legislative instrument declaring an entity to be an ‘enforcement agency’ or a ‘criminal law enforcement agency’, or amending the data retention obligations placed on carriers and carriage service providers, the declaration must be referred to the Parliamentary Joint Committee on Intelligence and Security for review and report within the parliamentary disallowance period;
• retain the existing provision that such declarations cease to have effect after 40 sitting days of either House; and
• remove the existing requirement within each of these sections for amendments to the primary legislation to be referred to the Committee.

Concluding remarks

2.106The Committee acknowledges the importance of bills, such as this one, that make incremental updates to legislation to help ensure it remains effective, fit-for-purpose and subject to appropriate oversight. Parliamentary review of such bills is also important as a safeguard against unintended consequences. The Committee supports passage of the Bill and thanks submitters for their participation in the review.

2.107The Committee notes that more substantial reforms to electronic surveillance legislation remain under development, and looks forward to being engaged in review of those reforms when they are presented to the Parliament.

2.108The Committee recommends that, subject to implementation of the recommendations in this report, the Crimes and Other Legislation Amendment (Omnibus No. 1) Bill 2024 be passed by the Parliament.

Mr Peter Khalil MP

Chair

25 July 2024

Footnotes

[1]Crimes and Other Legislation Amendment (Omnibus No. 1) Bill 2024 (COLA Omnibus Bill), Explanatory Memorandum, p. 2.

[2]Australian Federal Police, Submission 7, p. [1].

[3]Australian Federal Police, Submission 7, p. [1].

[4]COLA Omnibus Bill, Explanatory Memorandum, p. 2.

[5]Australian Federal Police, Submission 7, p. [2].

[6]Crimes Act 1914 (Crimes Act), ss. 3E(1)–(2).

[7]Crimes Act, s 3C (definition of ‘evidential material’).

[8]Crimes Act, s 3C (definition of ‘issuing officer’).

[9]Crimes Act, s 3F(1)

[10]Telecommunications and Other Legislation Amendment (Assistance and Access) Act 1979, sch 3.

[11]Crimes Act, s 3F(2A)(a).

[12]Crimes Act, s 3F(2A)(b).

[13]Crimes Act, s 3F(2A)(c).

[14]Crimes Act, s 3F(2B)(a).

[15]Crimes Act, s 3F(2B)(b).

[16]Crimes Act, s 3F(2B)(c). ‘Account-based data’ means particular data that a person can access using an account held with an electronic service—see 3CAA., such as

[17]Crimes Act, s 3K(2), (3A). The initial 30-day period may be extended on one or more occasions by up to a further 14 days, on application to an issuing authority—see s 3K(3B)–(3D).

[18]In relation to the offence to which the warrant relates, another indictable offence, or within the meaning of the Proceeds of Crime Act 2002 (POCA).

[19]Within the meaning of the POCA.

[20]COLA Omnibus Bill, sch 1, item 6, proposed ss. 3FA(1)–(2).

[21]COLA Omnibus Bill, sch 1, item 6, proposed s. 3FA(3).

[22]COLA Omnibus Bill, sch 1, item 6, proposed s. 3FA(4).

[23]COLA Omnibus Bill, sch 1, item 6, proposed s. 3FA(5).

[24]COLA Omnibus Bill, sch 1, item 6, proposed ss 3FA(3)(b)–(c), (4)(b)–(c), 5(b)–(c).

[25]Crimes Act, s. 3F(2C).

[26]COLA Omnibus Bill, sch 1, item 6, proposed s 3FA(6).

[27]COLA Omnibus Bill, sch 1, item 6, proposed s. 3FA(8).

[28]Attorney-General’s Department, Submission 6, p. [2].

[29]Australian Federal Police, Submission 7, p. [2].

[30]Australian Federal Police, Submission 7, p. [2].

[31]COLA Omnibus Bill, Explanatory Memorandum, p. 15.

[32]COLA Omnibus Bill, sch 1, item 1.

[33]COLA Omnibus Bill, Explanatory Memorandum, p. 15.

[34]COLA Omnibus Bill, Explanatory Memorandum, p. 16.

[35]Attorney-General’s Department, Submission 6, p. [2].

[36]See POCA, s. 228.

[37]POCA, ss. 225(3), 338 (definitions of ‘enforcement agency’ and ‘authorised officer’); Proceeds of Crime Regulations 2019, cls. 6, 8.

[38]Defined to include the proceeds or an instrument of an indictable offence. See POCA, s. 338 (definition of ‘tainted property’).

[39]Defined as evidence relating to property in respect of which action has been or could be taken under the POCA, benefits derived from the commission of an indictable offence, or literary proceeds.

[40]POCA, s. 228(1).

[41]COLA Omnibus Bill, sch 1, item 30, proposed s. 228A(1).

[42]COLA Omnibus Bill, sch 1, item 30, proposed s. 228A(2).

[43]COLA Omnibus Bill, sch 1, item 30, proposed s. 228A(3).

[44]COLA Omnibus Bill, sch 1, item 30, proposed ss. 228A(2)(b)–(c), 3(b)–(c).

[45]COLA Omnibus Bill, sch 1, item 30, proposed s. 228A(4).

[46]COLA Omnibus Bill, sch 1, items 30 (proposed s. 228(6)), 42.

[47]COLA Omnibus Bill, sch 1, items 44–47.

[48]National Anti-Corruption Commission Act 2022 (NACC Act), s. 119.

[49]NACC Act, pt 7, div 7, sub-div B. An ‘authorised officer’ of the NACC includes the Commissioner, a Deputy Commissioner or a person appointed in writing by the Commissioner for the purpose of investigation corruption issues. The person must be either a member of the AFP; or a staff member of the NACC who the Commissioner considers has suitable qualifications or experience, or who is also a member of the AFP or a State or Territory police force—see NACC Act, ss. 7 (definition of ‘authorised officer’), 267.

[50]COLA Omnibus Bill, Explanatory Memorandum, p. 31.

[51]PJCIS, Review of the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018, April 2019, pages 103–5, 107–9; Inquiry into the impact of the exercise of law enforcement and intelligence powers on the freedom of the press, August 2020, pages 76–78; Review of the amendments made by the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018, December 2021, pages 57–58, 69.

[52]PJCIS, Inquiry into the impact of the exercise of law enforcement and intelligence powers on the freedom of the press, August 2020, pages 79–83 (Recommendation 2).

[53]See Australian Government response to the Parliamentary Joint Committee on Intelligence and Security report: Inquiry into the impact of the exercise of law enforcement and intelligence powers on the freedom of the press, October 2020, pages [3]–[4].

[54]COLA Omnibus Bill, sch 2, item 13.

[55]COLA Omnibus Bill, sch 2, item 10.

[56]COLA Omnibus Bill, sch 2, item 11.

[57]COLA Omnibus Bill, sch 2, item 12.

[58]Australian Federal Police, Submission 7, p. [2].

[59]Australian Federal Police, Submission 7, p. [2].

[60]Attorney-General’s Department, Submission 6, p. [3].

[61]COLA Omnibus Bill, sch 3, item 1.

[62]COLA Omnibus Bill, cl 2.

[63]COLA Omnibus Bill, Explanatory Memorandum, p. 3.

[64]COLA Omnibus Bill, Explanatory Memorandum, p. 3.

[65]COLA Omnibus Bill, Explanatory Memorandum, p. 3.

[66]COLA Omnibus Bill, Explanatory Memorandum, p. 3.

[67]COLA Omnibus Bill, Explanatory Memorandum, p. 3. See also Attorney-General’s Department, Submission6, p. [3]–[4].

[68]COLA Omnibus Bill, sch 3, item 1

[69]Attorney-General’s Department, Submission6, p. [4].

[70]See Crimes (Amount of Penalty Unit) Instrument 2023.

[71]COLA Omnibus Bill, sch 3, item 2.

[72]Of the five previous legislative increases to the value of the penalty unit since it was first instituted, only one has commenced on 1 July. See Crimes and Other Legislation Amendment Act 1997, Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures) Act 2012, Crimes Legislation Amendment (Penalty Unit) Act 2015; Crimes Amendment (Penalty Unit) Act 2017; Crimes Amendment (Penalty Unit) Act 2022.

[73]COLA Omnibus Bill, Explanatory Memorandum, p. 4.

[74]See Administrative Arrangements Orders made on 23 June and 13 October 2022.

[75]TIA Act, s. 183.

[76]TIA Act, s. 187B.

[77]TIA Act, ss. 187E–187J.

[78]TIA Act, s. 187K.

[79]TIA Act, s. 188.

[80]TIA Act, s. 192.

[81]TIA Act, ss. 196–202.

[82]TIA Act, ss. 202A–202C.

[83]TIA Act, s. 203.

[84]Telecommunications Act 1997 (Telecommunications Act), ss. 53A, 56A.

[85]Telecommunications Act, ss. 317ZC–317ZE; 317ZF(6), (10)–(12A); 317ZL.

[86]Telecommunications Act, s. 314A.

[87]Telecommunications Act, s. 314B.

[88]Telecommunications Act, ss. 314C-314D.

[89]See PJCIS, Advisory report on the Telecommunications and Other Legislation Amendment Bill 2016, June 2017.

[90]Attorney-General’s Department, Submission 6, p. [4]. See also Cyber and Infrastructure Security Centre, ‘Telecommunications’, https://www.cisc.gov.au/information-for-your-industry/communications/telecommunications, accessed 30 May 2024.

[91]Department of Home Affairs, Submission 5, p. 3.

[92]COLA Omnibus Bill, sch 4, item 3.

[93]COLA Omnibus Bill, sch 4, items 15–48.

[94]Attorney-General’s Department, Submission 6, p. [4].

[95]COLA Omnibus Bill, sch 4, items 61–62. The Attorney-General may only specify a person or class of persons in the instrument if the person is an APS employee, or the class of persons consists wholly of APS employees, in the Attorney-General’s Department.

[96]COLA Omnibus Bill, sch 4, items 4–14, 49–57, 60, 63–161.

[97]COLA Omnibus Bill, Explanatory Memorandum, pages 39–57.

[98]PJCIS, Review of the Telecommunications and Other Legislation Amendment Bill 2016, June 2017; Review of Part 14 of the Telecommunications Act 1997 – Telecommunications Sector Security Reforms, February 2022.

[99]The Victorian Inspectorate has oversight and complaints functions relating to several Victorian integrity agencies. This includes a statutory role to monitor compliance by Victoria’s Independent Broad-based Anti-corruption Commission with applicable laws, policies and procedures: Victorian Inspectorate, Submission 4, p. [1].

[100]TIA Act, ss. 67(1)–(1A).

[101]TIA Act, s. 5(1) (definition of ‘permitted purpose’, paras (db), (dc), (fa), (h)); 68(be), (ed), (fa), (k)).

[102]TIA Act, s. 5(1) (definition of ‘permitted purpose’, para (dc)).

[103]TIA Act, s. 68(fa).

[104]Law Enforcement Conduct Commission (NSW), Submission 3, p. 2.

[105]TIA Act, s. 157.

[106]Parliamentary Inspector of the Corruption and Crime Commission (WA), Submission 2, p. 1.

[107]COLA Omnibus Bill, sch 5, items 65, 70, 75, 182, 187, 192.

[108]COLA Omnibus Bill, sch 5, items 143, 145, 148, 152.

[109]COLA Omnibus Bill, sch 5, items 65, 182.

[110]Parliamentary Inspector of the Corruption and Crime Commission of Western Australia, Submission 2, pages2–3; Victorian Inspectorate, Submission 4, p. 1. The Inspector of the Law Enforcement Conduct Commission (NSW) also expressed support for the amendments in correspondence to the Committee.

[111]Independent Commission Against Corruption (NSW), Submission 1, p. 3; Law Enforcement Conduct Commission (NSW), Submission 3, p. 3.

[112]Victorian Inspectorate, Submission 4, p. 1.

[113]Independent Commission Against Corruption (NSW), Submission 1, p. 3.

[114]Independent Commission Against Corruption (NSW), Submission 1, p. 2.

[115]Office of the Inspector of the Independent Commission Against Corruption (NSW), Telecommunications (Interception and Access) Act 1979 (Cth) – Serious Gap in Inspector's Powers, 27 October 2020, pages 6–8.

[116]Office of the Inspector of the Independent Commission Against Corruption (NSW), Telecommunications (Interception and Access) Act 1979 (Cth) – Serious Gap in Inspector's Powers, 27 October 2020, p. 4.

[117]Office of the Inspector of the Independent Commission Against Corruption (NSW), Telecommunications (Interception and Access) Act 1979 (Cth) – Serious Gap in Inspector's Powers, 27 October 2020, AttachmentB; Submission 10 to PJCIS, Inquiry into Potential Reforms of Australia’s National Security Legislation, 17 July 2012, p. 3.

[118]Parliamentary Inspector of the Corruption and Crime Commission of Western Australia, Submission 2, p. 2.

[119]TIA Act, s. 5(1) (definition of ‘relevant offence’).

[120]TIA Act, ss. 68(b), (da).

[121]TIA Act, s. 6L(2).

[122]TIA Act, s. 5(1) (definition of ‘permitted purpose’).

[123]Parliamentary Inspector of the Corruption and Crime Commission of Western Australia, Submission 2, p. 2.

[124]Parliamentary Inspector of the Corruption and Crime Commission of Western Australia, Submission 2, pages2–3.

[125]Parliamentary Inspector of the Corruption and Crime Commission of Western Australia, Submission 2, p. 3.

[126]Parliamentary Inspector of the Corruption and Crime Commission of Western Australia, Submission 2, p. 3.

[127]Attorney-General’s Department, Submission 6.1, p. 1.

[128]Law Enforcement Conduct Commission (NSW), Submission 3, pages 2, 3.

[129]Law Enforcement Conduct Commission (NSW), Submission 3, p. 2.

[130]Attorney-General’s Department, Submission 6.1, p. [2].

[131]TIA Act, s. 186B.

[132]Attorney-General’s Department, Submission 6.1, p. [3].

[133]Attorney-General’s Department, Submission 6.1, p. [3]. See also TIA Act, s. 186F.

[134]Attorney-General’s Department, Submission 6.1, p. [3].

[135]COLA Omnibus Bill, sch 5, items 16, 32, 40, 47, 58, 76, 96, 103, 121, 128, 135, 151, 172, 193–194.

[136]COLA Omnibus Bill, sch 5, items 76, 193.

[137]COLA Omnibus Bill, Explanatory Memorandum, p. 5.

[138]Attorney-General’s Department, Submission 6, p. [5].

[139]COLA Omnibus Bill, sch 5, items 1–15, 17–31, 33–39, 41–46, 48– 57, 59, 61–64, 66–69, 71–74, 77–95, 97–102, 105–120, 122–127, 129–134, 136–150, 152–171, 173–178, 180–181, 183–186, 188–191.

[140]COLA Omnibus Bill, sch 5, items 153–158.

[141]TIA Act, pt. 3-1A.

[142]TIA Act, s. 116. As a general rule, a ‘serious contravention’ is an offence that carries a maximum penalty of at least three years’ imprisonment or 180 penalty units—see TIA Act, s. 5E.

[143]TIA Act, ss. 178–179.

[144]TIA Act, s. 180.

[145]Attorney-General’s Department, Submission 6, p. [5].

[146]Independent Commission Against Corruption (NSW), Submission 1, p. 3; Law Enforcement Conduct Commission (NSW), Submission 3, p. 3.

[147]Law Enforcement Conduct Commission (NSW), Submission 3, p. 3.

[148]Department of Home Affairs, Reform of Australia’s electronic surveillance framework: Discussion Paper, 2021, p. 6.

[149]PJCIS, Advisory Report on the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014, February 2015, p. 194 (Recommendation 17).

[150]PJCIS, Advisory Report on the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014, February 2015, pages 189–192.

[151]PJCIS, Advisory Report on the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014, February 2015, p. 194 (Recommendation 17).

[152]PJCIS, Advisory Report on the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014, February 2015, p. 215 (Recommendation 21).

[153]All criminal law enforcement agencies are included within the definition of enforcement agency. See TIA Act, s. 176A(1).

[154]PJCIS, Advisory Report on the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014, February 2015, p. 163 (Recommendation 14).

[155]PJCIS, Advisory Report on the Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014, February 2015, p. 80 (Recommendation 3).

[156]TIA Act, ss. 187A(3A), 187AA(2).

[157]TIA Act, s 176A(10), 187A(3B), 187AA(3).

[158]TIA Act, s 176A(11), 187A(3C), 187AA(4).

[159]PJCIS, Advisory Report on item 28 of the Law Enforcement Legislation Amendment (State Bodies and Other Measures) Bill 2016, November 2016.

[160]PJCIS, Advisory Report on Item 250 of the National Anti-Corruption Commission (Consequential and Transitional Provisions) Bill 2022, May 2023.

[161]See Crimes and Other Legislation Amendment (Omnibus) Bill 2023, sch 10, item 27.

[162]See Telecommunications (Interception and Access) (Enforcement Agency—NSW Department of Communities and Justice) Declaration 2022.

[163]Telecommunications (Interception and Access) (Enforcement Agency—NSW Department of Communities and Justice) Declaration 2023; Telecommunications (Interception and Access) (Enforcement Agency—NSW Department of Communities and Justice) Declaration 2024.

[164]Telecommunications (Interception and Access) Amendment (Corrective Services Authorities) Bill 2022. Unlike a declaration under s. 176A, a declaration of a corrective services authority under proposed section 176B would not have expired after 40 sitting days.

[165]Comprehensive Review of the Legal Framework of the National Intelligence Committee, December 2019, vol2, pages 278–79.

[166]Corrective Services Administrators’ Council, Submission 45 to PJCIS, Review of the mandatory data retention regime, March 2020.

[167]The initial declaration commenced on 18 February 2022 and remained in effect until 9 February 2023; the second declarationcommenced on 1 April 2023 and remained in effect until 15 November 2023; the third declaration commenced on 15 May 2024 and will remain in effect for 40 sitting days.

[168]See Criminal Code, ss. 102.1A, 119.3(7).