Conduct of the inquiry
1.1
On 30 September 2022 the Attorney-General, the Hon Mark Dreyfus KC MP, wrote to the Committee referring an amendment to subsection 110A(1) of the Telecommunications (Interception and Access) Act 1979 (TIA Act) effected by Item 250 of the National Anti-Corruption Commission (Consequential and Transitional Provisions) Bill 2022 (the Consequential Bill) to the Committee for review.
1.2
Subsection 110A(11) of the TIA Act requires that any amendment to subsection 110A(1) of the TIA Act be referred to the Committee for review. Subsection 110A(l) of the TIA Act defines 'criminal law-enforcement agency', being an agency that is permitted to obtain stored communications warrants and to give authorisations for access to telecommunications data under the TIA Act.
1.3
In his letter the Attorney-General explained that the Government was seeking passage of the National Anti-Corruption Commission Act 2022 and the Consequential Bill by the end of 2022 so the Commission could become operational in mid-2023. The Attorney-General asked that the Committee report on its review by 30 November 2022, being 15 sitting days of the House of Representatives after the introduction of the Bill to comply with section 110A(11) of the TIA Act. The Bill, with amendments, passed both Houses of the Parliament on 29 November 2022 and received Royal Assent on 12 December 2022 and is now an Act.
1.4
The Committee received eight submissions and two supplementary submissions. Appendix A sets out a list of submissions. These submissions were prepared by submitters and accepted by the Committee prior to the Bill becoming an Act. In most cases amendments made to the Bill before passage in the Parliament did not affect the substantive points made by submitters.
1.5
The Committee held public hearings on 18 and 30 November 2022. Appendix B sets out a list of witnesses appearing at the public hearings.
Joint Select Committee on National Anti-Corruption Commission Legislation
1.6
The Committee notes that, on 28 September 2022, the Senate and House of Representatives established the Joint Select Committee on National Anti-Corruption Commission Legislation (Joint Select Committee) to inquire into and report on the provisions of two bills:
National Anti-Corruption Commission Bill 2022
National Anti-Corruption Commission (Consequential and Transitional Provisions) Bill 2022
1.7
The Joint Select Committee tabled its report on 10 November 2022. The report made six recommendations. As set out above, these Bills, with amendments, passed both Houses of the Parliament and are now Acts.
Report structure
1.8
This report contains two chapters:
this introduction which outlines the provisions under review
a chapter setting out consideration of Item 250 and the Committee’s comment.
The proposed National Anti-Corruption Commission
1.9
The National Anti-Corruption Commission (NACC) is created by the National Anti-Corruption Commission Act 2022 (NACC Act).
1.10
The NACC is an independent agency that is proposed to investigate and report on serious or systemic corruption in the Commonwealth public sector, refer evidence of criminal corrupt conduct for prosecution, and undertake education and prevention activities regarding corruption. The NACC is intended to strengthen corruption prevention across the Commonwealth government, by undertaking public inquiries and providing advice on corruption risks and vulnerabilities and strategies to address them. The NACC Act establishes the Commissioner as the head of the NACC, and provides the Commissioner with broad powers to investigate corruption issues and conduct public inquiries.
Jurisdiction of the NACC and definition of corrupt conduct
1.11
The NACC Act provides the Commissioner with broad jurisdiction to investigate Commonwealth Ministers, parliamentarians, persons engaged under the Members of Parliament (Staff) Act 1984, the heads and employees of Commonwealth agencies, government contractors and their employees, members of the Australian Defence Force, statutory office holders and appointees, officers and directors of Commonwealth companies, and people or bodies providing services, exercising powers or performing functions on behalf of the Commonwealth.
1.12
The Commissioner is only able to commence an investigation (whether following a public complaint, agency referral or on their own initiative) in relation to a corruption issue that the Commissioner is of the opinion could involve serious or systemic corrupt conduct. This would include, but would not be limited to, conduct that could constitute a criminal offence—for example, bribery, abuse of office and related offences contained in Part 7.6 of the Criminal Code.
1.13
The NACC Act defines corrupt conduct to include any conduct of a person (including a public official) that adversely affects, or could adversely affect, the honest or impartial exercise or performance of any public official’s powers, functions or duties. Corrupt conduct would also include any conduct of a public official that:
constitutes or involves a breach of public trust;
constitutes, involves, or is engaged in for the purpose of abuse of the person’s office as a public official; or
constitutes or involves the misuse of information acquired in the person’s capacity as a public official.
1.14
The NACC Act enables the Commissioner to investigate serious or systemic corrupt conduct that occurred prior to the NACC’s establishment, the conduct of former public officials while they were public officials, and the misuse of information by a former public official that was acquired by the former public official in the course of their functions or duties as a public official.
1.15
Section 274 of the NACC Act largely preserves the powers, privileges and immunities of each House of Parliament, members of each House of Parliament, the committees of each House of the Parliament, and joint committees of both Houses of the Parliament.
The Australian Commission for Law Enforcement Integrity
1.16
As discussed below, the clause subject to this review would essentially transfer to the NACC telecommunications powers currently vested in the Australian Commission for Law Enforcement Integrity (ACLEI).
1.17
ACLEI’s submission explained that ACLEI and its Integrity Commissioner are established under the Law Enforcement Integrity Commissioner Act 2006 (LEIC Act), which commenced operation on 30 December 2006. ACLEI is a narrow jurisdiction anti-corruption commission, with jurisdiction limited to designated law enforcement agencies.
Role and function of the ACLEI
1.18
ACLEI achieves its purpose by performing the functions set out in the LEIC Act. It undertakes this role through detecting, assessing and investigating alleged corrupt conduct, giving priority to conduct that is serious and systemic. ACLEI also works to support its partner agencies to detect, prevent and investigate corruption.
1.19
Currently, the following agencies are wholly subject to ACLEI’s jurisdiction:
Australian Criminal Intelligence Commission (ACIC)
Australian Federal Police (AFP) (including ACT Policing)
Australian Transaction Reports and Analysis Centre (AUSTRAC)
Department of Home Affairs (Home Affairs), including the Australian Border Force (ABF).
1.20
In addition, prescribed aspects of the following agencies are also part of ACLEI’s jurisdiction:
Department of Agriculture, Fisheries and Forestry (DAFF)
Australian Competition and Consumer Commission (ACCC)
Australian Prudential Regulation Authority (APRA)
Australian Securities and Investments Commission (ASIC)
Australian Taxation Office (ATO), and
Office of the Special Investigator (OSI).
1.21
The agency heads within ACLEI’s jurisdiction must notify the Integrity Commissioner of corruption issues in their agencies as soon as practicable once they become aware of them. Information about corruption may also come from members of the public, the Attorney- General, law enforcement and other government agencies.
Comparison of ACLEI and NACC
1.22
ACLEI’s submission noted that it is empowered to investigate allegations of corrupt conduct engaged in by staff members of law enforcement agencies. On the other hand, the NACC applies to a broader range of public officials, as noted above, comprising parliamentarians, staff members of Commonwealth agencies, staff members of the NACC itself, and any person who is acting for or on behalf of, or as a deputy or delegate of, any of those persons or bodies.
1.23
Under the LEIC Act, a staff member of a law enforcement agency engages in corrupt conduct if they engage in conduct that:
involves, or that is engaged in for the purpose of the staff member abusing his or her office as a staff member of the agency;
perverts, or that is engaged in for the purpose of, perverting the course of justice; or
having regard to the duties and powers of the staff member as a staff member of the agency, involves, or is engaged in for the purpose of, corruption of any other kind.
1.24
In contrast, as noted above, the NACC Act provides for the investigation of allegations concerning engagement in corrupt conduct, including any conduct of a public official that breaches public trust, abuses public office or misuses information acquired in the person’s capacity as a public official.
1.25
ACLEI’s submission also noted the wider powers available to the NACC to investigate a former public official for subsequent misuse of documents or information obtained while the person was a public official. In contrast, ACLEI’s jurisdiction is limited to conduct undertaken while persons are staff members of a law enforcement agency.
Item 250 of the National Anti-Corruption Commission (Consequential and Transitional Provisions) Bill 2022
1.26
Currently section 110A(1) of the TIA Act provides as follows:
110A Meaning of criminal law‑enforcement agency
(1) Each of the following is a criminal law‑enforcement agency:
(a) the Australian Federal Police;
(b) a Police Force of a State;
(c) the Australian Commission for Law Enforcement Integrity;
(e) subject to subsection (1A), the Immigration and Border Protection Department;
(ea) the Australian Securities and Investments Commission;
(eb) the Australian Competition and Consumer Commission;
(f) the Crime Commission;
(g) the Independent Commission Against Corruption;
(h) the Law Enforcement Conduct Commission;
(j) the Crime and Corruption Commission;
(k) the Corruption and Crime Commission;
(l) the Independent Commissioner Against Corruption;
(m) subject to subsection (7), an authority or body for which a declaration under subsection (3) is in force.
1.27
Item 250 of the Consequential Bill (Item 250) amended section 110A(1) of the TIA Act as follows:
250 Paragraph 110A(1)(c)
Repeal the paragraph, substitute:
(c) the National Anti-Corruption Commission;
Access to stored communications
1.28
These provisions were explained in the Explanatory Memorandum (EM) to the Consequential Bill.
1.29
The EM set out that Item 250 would permit the Commissioner, Deputy Commissioner, and staff members of the NACC authorised by the Commissioner in writing to apply for a stored communications warrant under section 110 of the TIA Act. Stored communications include communications such as email, SMS, or voice messages stored on a carrier’s equipment.
1.30
Under section 116 of the TIA Act, an issuing superior Court Judge may grant a stored communications warrant if satisfied that, among other things, there are reasonable grounds for suspecting that a particular carrier holds relevant stored communications, and that the information obtained would be likely to assist in connection with the investigation of a serious contravention (including a serious offence).
1.31
A serious contravention is, among other things, a contravention of an Australian law punishable for a maximum period of at least 3 years. The definition of a serious contravention is set out in section 5E of the TIA Act as follows:
5E Serious contraventions
(1) For the purposes of this Act, a serious contravention is a contravention of a law of the Commonwealth, a State or a Territory that:
(a) is a serious offence; or
(b) is an offence punishable:
(i) by imprisonment for a period, or a maximum period, of at least 3 years; or
(ii) if the offence is committed by an individual—by a fine, or a maximum fine, of at least 180 penalty units; or
(iii) if the offence cannot be committed by an individual—by a fine, or a maximum fine, of at least 900 penalty units; or
(c) could, if established, render the person committing the contravention liable:
(i) if the contravention were committed by an individual—to pay a pecuniary penalty of 180 penalty units or more, or to pay an amount that is the monetary equivalent of 180 penalty units or more; or
(ii) if the contravention cannot be committed by an individual—to pay a pecuniary penalty of 900 penalty units or more, or to pay an amount that is the monetary equivalent of 900 penalty units or more.
(2) Except so far as the contrary intention appears, a contravention, or a contravention of a particular kind, is taken, for the purposes of this Act, to be a contravention, or to be a contravention of that kind, as the case may be, that:
(a) has been committed or is being committed; or
(b) is suspected on reasonable grounds of having been committed, of being committed or of being likely to be committed.
(3) To avoid doubt, a reference in this section to a number of penalty units in relation to a contravention of a law of a State or a Territory includes a reference to an amount of a fine or pecuniary penalty that is equivalent, under section 4AA of the Crimes Act 1914, to that number of penalty units.
1.32
This threshold, and the matters a superior Court Judge must consider, would apply to applications by the NACC as they currently do to ACLEI and consistently with other agencies able to apply for stored communications warrants.
Access to telecommunications data
1.33
These provisions were explained in the EM to the Consequential Bill.
1.34
The EM provided that as a criminal law-enforcement agency under paragraph 110A(1)(c) of the TIA Act, the NACC would also be an enforcement agency under section 176A of that Act. As an enforcement agency under section 176A, the NACC would be authorised to obtain telecommunications data under Chapter 4 of the TIA Act.
1.35
Telecommunications data does not include the content of a telecommunications communication, but includes the source and destination of a communication, the time and duration of its connection and the location of the equipment used in connection with a communication.
1.36
An authorised officer of an enforcement agency can internally authorise access to historical telecommunications data if satisfied that it is reasonably necessary for, among other things, enforcing the criminal law (section 178 of the TIA Act).
1.37
In relation to data that comes into existence during the period of authorisation (prospective data), an authorised officer can only authorise access if satisfied the disclosure is reasonably necessary for the investigation of a serious offence, or an offence punishable by imprisonment for at least three years (section 180 of the TIA Act).
1.38
For the purposes of the NACC, an authorised officer would be the Commissioner (as the head of a criminal law-enforcement agency), or a person in a management position authorised by the Commissioner.
1.39
Where the NACC seeks telecommunications data that relates to a person who is working in a professional capacity as a journalist, or their employer, for the purpose of identifying an informant, the NACC would require a journalist information warrant under section 180T prior to making an authorisation under Chapter 4 of the TIA Act.
1.40
This threshold, and the matters an authorised officer must consider, would apply to the NACC as they currently do to ACLEI and consistently with other agencies able to access telecommunications data.
Journalist Information Warrants
1.41
While a warrant is not generally necessary for a Criminal Law-Enforcement Agency (CLEA) to request access to data under the TIA Act, there are specified protections in relation to journalists. Division 4C of Part 4-1 of the TIA Act permits a relevant law enforcement agency or ASIO to access telecommunications data under a Journalist Information Warrant (JIW). This kind of warrant enables an agency to make an authorisation for the use or disclosure of telecommunications data relating to the communications of a person working in a professional capacity as a journalist, or the employer of such a person, where the purpose of the authorisation would be to identify another person known or reasonably believed to be a source.
1.42
The warrant may specify conditions or restrictions related to the making of authorisations under the warrant. Such a warrant may be in place for up to 90 days (section 190U(3)). The issue of a warrant generates an obligation on the enforcement agency to notify the respective oversight body. A journalist in relation to whom such a warrant has been issued is not notified of the existence of the warrant.
International Production Orders
1.43
In relation to access to stored communications, clause 33 of Schedule 1 to the TIA Act enables a criminal law-enforcement agency to apply for an International Production Order (IPO) directing a designated communications provider to provide stored communications. A criminal law-enforcement agency would include the NACC (section 110A of the TIA Act, as amended by Item 250). An IPO may only be issued under clause 39 of Schedule 1 to the TIA Act where the issuer is satisfied there are reasonable grounds to suspect that stored communications relevant to a particular person are held by the provider, and that the information gathered under the IPO would be likely to assist the detection, prevention, investigation or prosecution of an offence that carries a penalty of at least 3 years imprisonment.
Issuing authorities for NACC TIA warrants
1.44
Amendments were made to the Consequential Bill during its passage through Parliament, to specifically limit the authorities able to issue warrants to the NACC under the TIA Act. Those provisions, now embedded in the TIA Act, provide that warrants under the Act can only be issued to the NACC by superior Court Judges who have consented to being declared or appointed as an eligible Judge or issuing authority for the purposes of the TIA Act, and whom the Attorney-General has so declared or appointed.
1.45
These amendments to the TIA Act include inserting a definition of ‘superior Court Judge’ being:
a Judge of the Federal Court of Australia; or
a Judge of the Federal Circuit and Family Court of Australia (Division 1).