CHAPTER 2


CHAPTER 2

REPORTS ON THE OPERATION OF ACTS AND PROGRAMS

2.1        Standing Order 25(20) does not provide for the consideration of reports on the implementation or operation of acts or programs. The committee is not, therefore, required to include them in its report on the examination of annual reports. However, as on previous occasions, the committee has chosen to examine such reports, specifically the:

  • Surveillance Devices Act 2004 report for the year ending 30 June 2012; and
  • Telecommunications (Interception and Access) Act 1979.

Report on the operation of the Surveillance Devices Act 2004

2.2        The report on the operation of the Surveillance Devices Act 2004 (SD Act) was tabled in the House of Representatives on 12 December 2013 and in the Senate on 11 February 2014. The report was presented to the minister on 22 October 2013, outside the SD Act's legislative provisions. Under section 50(3) of the SD Act:

The report must be submitted to the Minister as soon as practicable after the end of each financial year, and in any event within 3 months after the end of the financial year.[1]

2.3        The report relates to the period from 1 July 2012 to 30 June 2013. During this reporting period, an important legislative development took place in relation to the SD Act. Following reforms to the Law Enforcement Integrity Act 2012, integrity tests were introduced for staff members of the Australian Federal Police (AFP), Australian Crime Commission (ACC) and the Australian Customs and Border Protection Service (ACBPS) suspected of corrupt conduct. The tests are intended to test whether an official will respond to a simulated event in a manner that is illegal or would breach an agency's standard of integrity.[2] This amendment was originally recommended by the Parliamentary Joint Committee on the Australian Commission for Law Enforcement Integrity.[3]

2.4        There were no significant judicial decisions under the SD Act during the reporting period.[4]

Applications for surveillance device warrants

2.5        Information in relation to the number of warrants obtained at the state and territory level was not available as state and territory law enforcement agencies generally rely on their own legislative regimes for the use of surveillance devices, although they are able to make use of the SD Act when dealing with a Commonwealth matter or during a joint operation.[5]

2.6        Pursuant to paragraph 50(1)(a) of the SD Act, the annual report must provide information on the number of applications for warrants made and the number of warrants issued for the reporting period. Under subsection 50(2), the SD Act also requires the report to provide a breakdown of these numbers in respect of each different kind of surveillance device.[6]

2.7        For 2012-13 there was an approximate increase in the number of warrants issued with 737 warrants issued compared to the preceding period with 642 warrants issued.[7]

2.8        Section 15 of the SD Act provides for remote application for a warrant. A remote warrant could be made by telephone, fax, email or other means of communication if it is impracticable for the law enforcement agency to apply in person. There were no remote applications during the reporting period.[8]

2.9        Section 50 requires the inclusion of information which is, for the committee's purpose, indicative of the SD Act's effective use, such as: the number of arrests; prosecutions and convictions; as well as 'the number of locations and safe recoveries of children', based on information obtained using surveillance devices.[9]

2.10      The following table shows the number of arrests, prosecutions and convictions for 2012-13. The figures in brackets refer to the preceding reporting period 2011-12. During the reporting period there was a decrease in arrests and prosecutions, however, there was an increase in convictions.[10]

Table 2.1

AGENCY

Arrests

Safe Recovery

Prosecutions

Convictions

ACC

(25) 27

-

(0) 5

(0) 1

AFP

(112) 102

-

(125) 121

(25) 50

Victoria Police

(2) 2

-

-

-

Total

(139[11]) 131

-

(125) 126

(25) 51

2.11      The report notes that information regarding arrests, prosecutions (inclusive of committal proceedings) and convictions should be interpreted with caution, especially in presuming a relationship between them. An arrest in one reporting period might not lead to a prosecution in a later reporting period, likewise a conviction in one reporting period could be recorded in another period. Further, there is no correlation between the number of charges and arrests as an arrest could lead to conviction for multiple offences. Also, in situations where the weight of evidence obtained from surveillance devices is sufficient for defendants to enter guilty pleas, it may not be necessary for surveillance information to be introduced as evidence.[12]

Telecommunications (Interception and Access) Act 1979

2.12      The Annual report on the Telecommunications (Interception and Access) Act 1979 2012-13 was tabled in the House of Representatives on 12 December 2013 and in the Senate on the 11 February 2014.

2.13      The Telecommunications (Interception and Access) Act 1979 (TIA Act) has the primary goal of protecting the privacy of individuals who use the Australian telecommunications network. Communications cannot be intercepted unless authorised by specific circumstances set out in the TIA Act. Law enforcement agencies have the option to access several separate warrants to intercept a communication. These include warrants for real-time content and for stored communications.[13]

2.14      Section 104 of the TIA Act sets out the provisions for annual reports, specifically:

The Minister shall cause a copy of a report under section 93 or Division 2 to be laid before each House of the Parliament within 15 sitting days of that House after the Minister receives the report, or the report is prepared, as the case may be.[14]

2.15      The committee notes that the report was tabled before the required date in both Houses of Parliament.

2.16      In 2012-13 interception warrants were only available to 17 Commonwealth and state and territory agencies including ACC, ACLEI, AFP, state and territory police and state anti-corruption agencies.[15] In order to use an interception warrant an authority must be satisfied that the agency is investigating a serious offence, that the gravity of the offence warrants the intrusion and that the interception is likely to support the investigation.[16]

2.17      The report notes that an interception warrant may only be issued by an eligible judge or a nominated Administrative Appeals Tribunal member. Eligible judges in 2012-13 included members of the Federal Court of Australia, the Family Court of Australia and the Federal Circuit Court. Judges have to formally consent in writing and be declared eligible by the Attorney-General to be an eligible judge.[17]

2.18      With the introduction of the Cybercrime Legislation Amendment Act 2012 law enforcement agencies became able to work with cybercrime investigators globally. The Act also amended the Criminal Code Act 1995 (Cth) to enable the ability for agencies to access and share computer offence information with regards to international investigations.[18]

2.19      During the reporting period, the Parliamentary Joint Committee on Intelligence and Security (PJCIS) made recommendations regarding the TIA Act after tabling its report for the Inquiry into Potential Reforms of National Security Legislation on 24 June 2013. The committee assessed possible reforms to the interception system to ensure it is up to date with rapid changes in the telecommunications environment.[19]

2.20      After accepting that emerging and upcoming technologies can impact on the ability of law enforcement agencies to intercept communications, gather intelligence and arrest and prosecute offenders, the committee made several recommendations in its report, which included:

  • a comprehensive rewrite of the TIA Act to provide clear direction on the protections and powers available under the legislations;
  • the introduction of a security framework for the telecommunications sector through amendments to the Telecommunications Act; and
  • support for the majority of the proposed measures to modernise and improve laws relating to Australian intelligence agencies.[20]

2.21      The integrity testing introduced by the Law Enforcement Integrity Legislation Amendment Act 2012 mentioned earlier in this chapter also applied to the TIA Act.[21]

Telecommunications interception warrants

2.22      During the reporting period a total of 4226 telecommunications interceptions warrants were issued by Judges and nominated AAT members.[22]

Table 2.2

Issuing Authority

Family Court Judges

Federal Court Judges

Federal Circuit Court Judges

Nominated AAT members

Total

Number of warrants issued

175

124

597

3 330

4 226

2.23      The table below shows the number of applications for warrants, telephone applications for warrants and renewal applications that were made, withdrawn and issued. The figures in brackets refer to the preceding reporting period 2011-12.[23]

Table 2.3

Applications for warrants

Telephone Applications for Warrants

Renewal applications

Made

(3 764) 4 247

(111) 90

(513) 607

Refused/withdrawn

(9) 15

(0) 1

(0) 0

Issued

(3 755) 4 232

(111) 89

(513) 607

2.24      The committee notes that there appears to be a discrepancy between the total number of telecommunications warrants issued in Table 2.2 (4 226) compared to the total number issued in Table 2.3 (4 232). The committee is aware that this may not necessarily be an error but rather a difference that needs further clarification.

2.25      During the reporting period there was an instance in which a telecommunications interception was undertaken without a warrant. The TIA Act allows agencies to undertake an interception without a warrant only in very specific circumstances, including if there is a serious threat to life or the possibility of serious injury. The AFP carried out an interception without a warrant on the grounds that the person had threatened to kill or seriously injure another.[24]

Stored Communications

2.26      The TIA Act enables law enforcement agencies to apply for stored communications warrants to assist investigations. These warrants may apply to email, SMS or voice message communications. In 2012-13 agencies that applied for stored communication warrants included the Australian Competition and Consumer Commission (ACCC), the Australian Securities and Investments Commission (ASIC) and the Australian Customs and Border Protection Service.[25]

2.27      The table below shows the number of applications for warrants, telephone applications for warrants and renewal applications that were made, withdrawn and issued. The figures in brackets refer to the preceding reporting period 2011-12.[26]

Table 3.4

Applications for stored communications warrants

Telephone Applications for stored communication warrants

Made

(485) 562

(0) 0

Refused/withdrawn

(2) 1

(0) 0

Issued

(483) 561

(0) 0

2.28      During the reporting period, law enforcement agencies made 132 arrests, 152 prosecutions and 65 convictions based on evidence obtained under stored communications warrants.[27] In total, information obtained under the interception and stored communications warrants were used in 3 083 arrests, 6 898 prosecutions and 2 765 convictions.[28]

Senator the Hon Ian Macdonald
Chair

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