Chapter 3 - Key issues
3.1
The majority of submissions received by the committee expressed
support for particular aspects of the Bill's proposed
operation[18]. Only two submissions provided
detailed analysis of the Bill in a broader
sense.[19] These submissions expressed
strong opposition to several parts of the Bill.
3.2
This chapter discusses the main issues and concerns
raised in submissions in relation to:
-
expansion of the definition of 'law enforcement
officer' in the Criminal Code (Schedule 1 of the Bill);
-
exemption for telecommunications interception to
and from an 'emergency services facility' in the TI Act (Part 1 of Schedule 2);
-
telecommunications interception by
radiocommunications inspectors under the TI Act (Part 2 of Schedule 2);
-
expansion of the definition of 'class 1' offence
in the TI Act to include conduct comprising the offence of accessory after the
fact (Part 3 of Schedule 2);
-
civil forfeiture proceedings and named person
warrants (Part 4 of Schedule 2); and
-
clarification of the term 'employee of a carrier'
(Part 5 of Schedule 2).
Definition of 'law enforcement officer' (Schedule 1)
3.3
Three submissions commented specifically on the proposed
expansion of the definition of 'law enforcement officer' in the Criminal Code
to include four state-based organisations and 'any other agency that is
prescribed by the regulations' (all of which would be capable of intercepting
communications under the TI Act).
3.4
Western Australia Police Service (WAPS) submitted that
the proposed extension of the definition to include a reference to the WA Corruption
and Crime Commission 'will assist that agency with its investigative powers
concerning corruption within the Public Sector and organised crime'.[20]
3.5
The Law Council of Australia (the Law Council)
expressed concern that the reference in proposed paragraph 473.1(k) to 'a
member or employee of any other agency that is prescribed by the regulations' as
a 'law enforcement officer' is extremely wide:
This paragraph gives wide discretion to the Attorney-General and
Minister for Justice and Customs conferring broad powers upon members of
agencies not fully defined by regulation. It is unclear from the Bill,
Explanatory Memorandum or second reading speech which agencies are envisaged by
this provision. Section 473.1 of the Criminal Code currently defines law
enforcement officers as members of police forces of Australia
or another country, members of the D[irector] of P[ublic] P[rosecutions] and
other law enforcement agencies. This new paragraph may allow private security
firms, or agencies with little control or monitoring to have employees or
members classified as law enforcement officers, with all the powers of
telephone interception of the Interception Act.[21]
3.6
The Law Council suggested that paragraph 473.1(k)
should be amended to specify more clearly which agencies may be prescribed.[22]
3.7
The New South Wales Council for Civil Liberties
(NSWCCL) articulated similar concerns, although it went further by arguing that
proposed paragraph 473.1(k) should be removed from the Bill:
No limit is set on what kinds of agencies may be included...[T]he
power to determine the range of bodies given interception powers [should] be
kept in [the] hands of parliament.[23]
3.8
Further, NSWCCL argued that:
The legitimacy for providing the means to intercept depends on
the legitimacy of the provision of the powers to do so. There is ground for
concern that the range of offences that the bodies investigate is determined by
State acts, not acts of the Commonwealth. An amendment to the NSW Crimes
Commission Act, for example, would enable officers of the Crimes Commission to
seek warrants in relation to crimes beyond its current concern with drug
offences.[24]
Exemption for an 'emergency services facility' (Part 1 of Schedule 2)
3.9
Most submissions received by the committee focussed
their comments on the proposed provisions relating to the exemption for an 'emergency
services facility'. Submissions from the Queensland Police Service/National
Emergency Communications Working Group (NECWG), South Australia Police (SAPOL),
WAPS, the AFP, Tasmania Police and New South Wales Police expressed support for
the exemption from the general prohibition on the interception of
communications made to, or from, a declared 'emergency services facility'.[25]
3.10
However, the Law Council and the NSWCCL were highly
critical of the proposed provisions in relation to emergency services. They argued,
amongst other things, that:
-
there is little apparent justification for such increased
ambit of the power to intercept telecommunications;
-
the range of communication devices and the scope
of information captured by the proposed amendments is extremely wide;
-
the exemption of declarations of an 'emergency
services facility' from the scope of the Legislative Instruments Act
significantly and inappropriately weakens scrutiny and accountability
mechanisms; and
-
there is no requirement in the Bill for
emergency services interceptions to occur lawfully in the course of a person's
duties.
3.11
These arguments are set out more fully below.
Increase in permitted interceptions
3.12
NSWCCL contended that the 'prime purpose of the [TI
Act] is to outlaw interceptions of telecommunications, not to create a large
class of permitted interceptions'[26]
and that any increase in permitted interceptions of telecommunications results
in the TI Act moving further away from its original purpose:
Each inclusion of new grounds for interception permits further
invasion of the privacy of innocent persons. Each extension of the agencies
permitted to intercept increases the likelihood of misuse. Proposals that can
only be supported on the grounds that they are “important legislative tool[s]
not available to enforcement agencies” should be rejected.[27]
3.13
NSWCCL also pointed out that the number of telecommunications
warrants issued in Australia
has increased without a commensurate increase in the number of relevant crimes
reported or convictions recorded:
The number of warrants issued annually in Australia
under the [TI Act] has been increasing substantially, to the point where it
exceeds the number issued for similar purposes in the United
States of America. There are few refusals of
requests for warrants, and none from any member of the Administrative Appeals
Tribunal. There has been no significant increase in the number of such crimes
reported, to justify this increase. Nor has there been a commensurate increase
in criminal convictions of the most serious crimes.[28]
3.14
The Law Council agreed that '(i)t is unclear from the
Explanatory Memorandum or second reading speech what justification is advanced
for the increased ambit of the power' in relation to emergency services
facilities.[29]
Range of communication
devices/scope of information
3.15
Both the Law Council and NSWCCL took issue with the
potential breadth of the emergency services provisions in the Bill.
The Law Council stated that, in its view:
The scope of information that the amendments of the Bill
capture...is extremely wide. The Bill will, for
example, allow the interception of phone calls, email and potentially mobile
telephone calls to or from the emergency service facility. Despite the increased
reporting and statistical observation of interceptions contained in the Bill,
the ability to intercept a communication of this kind from an emergency service
facility, potentially of a personal nature, is subject to little control.
Personal communications of personnel of these services may be intercepted and
recorded, without a warrant and without notice.[30]
3.16
The Law Council recommended that 'controls be placed on
the type of communications and the instances in which these communications to
or from an emergency services facility can be intercepted'.[31]
3.17
NSWCCL also commented on the wide range of
communications encompassed by the Bill:
All telecommunications—by fax, email, web access, mobile, text
message or telephone not connected with emergencies—may be recorded, without
warrant or advice.[32]
3.18
NSWCCL were unsure why such broad application of the
exemption would be necessary:
There may be point in recording a call to an emergency service,
for vital information may be missed by the person taking the call. The justification
given in the Second Reading Speech of the Minister for Justice for the proposed
extension is that emergency services use hundreds of numbers behind the scenes
in responding to a call. It is not clear to the [NSW]CCL how recording all
these calls will assist the provision of emergency aid. What might they hope to discover?[33]
3.19
In its submission, WAPS made some operational observations
about the scope of the exemption in relation to personal mobile phone calls and
emails within an 'emergency services facility'. In relation to personal mobile
calls, it submitted that the only time they would be recorded by WAPS would be
in circumstances where an employee is under investigation. In any case, such a
recording would not take place in the WAPS Communications Centre but by the
Telecommunications Interception Unit 'in accordance with a warrant obtained in
relation to that specific mobile phone ID'.[34]
3.20
WAPS also pointed out that:
...the recording of
mobile telephone conversations both personal and those made over a Western
Australia Police issued mobile telephone is a far more complex issue in general
circumstances and cannot be recorded as a broad base connection...The ability to
capture conversations made to or from any mobile telephone within an emergency
service facility is technically complex and costly.[35]
3.21
Further:
...the technical ability
to constrain interception of mobiles only to a small complex would seem
problematic and there is a high risk that other (non Police staff) mobile users
in the same area may also be recorded. Current WAPS business rules do not allow
the use of any mobile phones within the Emergency Communications Centre.[36]
3.22
In
relation to the interception of emails, WAPS noted that the 'technical ability
to isolate a small number of messages that are sent from an emergency services
facility would also be difficult'.[37]
Prescribing an 'emergency services
facility'
3.23
The Law Council expressed reservations in relation to
the exemption of declarations of an 'emergency services facility' from the
scope of the Legislative Instruments Act under proposed subsection 7(3AC) of
the Bill:
Without scrutiny of any kind, these provisions allow the
Attorney-General to prescribe any facility he or she sees fit as an emergency
facility, with no legislative requirement to justify the purpose or reason for
doing so. Parliamentary scrutiny is an integral part of the Legislative Instruments Act 2003 and to
remove it weakens the regime of scrutiny and ministerial responsibility.[38]
3.24
Further, the Law Council suggested that the Bill
should be amended to remove proposed subsection 7(3AC) so that a declaration
under proposed subsection 7(3AB) would be deemed a legislative instrument for
the purposes of the Legislative Instruments Act:
This will allow appropriate scrutiny of the power by Parliament.
If necessary, a provision should be inserted which removes the requirement to
detail the specific location of the facility from the information
provided to Parliament to protect the interests of critical infrastructure, yet
still gives sufficient information for Parliament to adequately monitor the
regulatory power.[39]
3.25
NSWCCL also noted its apprehension in this regard:
...there is no requirement for [declarations by the
Attorney-General] to be made public, and it is clear that the intention is that
they will not be. The Parliament will not have the power to over-ride them
(save by fresh legislation).
There is nothing in the Bill to
prevent a future (rogue) Attorney-General from declaring all police premises
emergency facilities.[40]
3.26
NSWCCL submitted that, in any case, '(i)t would not be
difficult for an emergency service to restrict emergency traffic to a limited
number of phone lines and radio frequencies'.[41]
It also suggested that the Bill should be
amended to restrict 'the recording of communications to those relating to an
emergency current at the time of the call' and that '(t)he determination of
premises should be restricted by reference to the kind of service provided'.[42]
No requirement to be in the course
of a person's duties
3.27
As the committee noted in Chapter 2[43], unlike the current exemption in the
TI Act which applies to a person 'lawfully engaged in duties', there is no
requirement under the Bill for emergency
services interceptions to occur lawfully in the course of a person's duties. NSWCCL
speculated that this has been done 'to
allow communications by other means than telephones to be included'[44] but was unsure why such an approach
was being taken:
Again, it is not clear
what it is hoped will be gained. People do not report emergencies by text message
or by email. Requests for emergency back-up might be sent by radio or mobile;
but they are sent to dedicated receivers, lest they be lost in the general
noise.[45]
3.28
Further,
NSWCCL commented that such a provision might be problematic in practice, possibly
encouraging illicit behaviour:
This proposal would
allow a rogue police officer (a species that has been found in Australia) to intercept any conversation through a
police station (or indeed to initiate and record one), evading the
accountability procedures of the Act and subverting its principal intention, to
outlaw interception.[46]
Interception by
radiocommunications inspectors (Part 2 of Schedule 2)
3.29
This part of the Bill
was supported by those submissions that made comment on it.[47]
3.30
The ACA stressed the operational significance of the
proposed amendments from its point of view in relation to radiocommunications
inspectors. It submitted that the amendments are 'a prudent regulatory response
that will allow radiocommunications inspectors to effectively perform their
spectrum management functions for the benefit of the community'.[48]
3.31
The ACA explained that the spectrum management
functions undertaken by radiocommunications inspectors employed by the ACA
include investigating interference to radiocommunications services,
investigating interference to radio and television broadcasting reception, and
investigating offences relating to the operation of radiocommunications
transmitters. Further, it noted that the ACA places high priority on
investigating interference that affects safety of life services.[49]
3.32
The ACA pointed out that, in many cases,
radiocommunications inspectors have been able to perform their functions,
including aural monitoring of radiocommunications, without contravening the TI
Act, since the interception of communications provided solely by means of
radiocommunications is not prohibited by the TI Act. However:
It has now become
commonplace for radiocommunications systems to be connected to a
telecommunications network. In such cases aural monitoring and recording of the
radiocommunications system may contravene the TI Act. ACA investigators may
not, in the first instance, know if the radiocommunications traffic they are
monitoring is carried over a telecommunications network. In some instances, the
system concerned may switch between a stand alone radiocommunications system
and a system that connects to a telecommunications network. For example, high
frequency radio systems used for outback communications have this facility as
do some taxi services in regional areas. At present radiocommunications
inspectors must discontinue aural signal monitoring and recording when it
becomes apparent that the radiocommunications being monitored are carried over
the telecommunications network.[50]
3.33
The ACA also noted that the ability of
radiocommunications inspectors to listen to the information carried by a radio
system is critical to the early detection and suppression of interference and
unauthorised transmissions. Its submission gave examples of interference
incidents that have affected safety services:
ACA radiocommunications
inspectors have investigated emissions from imported cordless telephones that
interfered with Air Traffic Control frequencies at major airports and nuisance
calls to the 000 emergency call services in Melbourne using a taxi radiocommunications system.
This simply underlines the need for radiocommunications inspectors to be able
to legally intercept radiocommunications and telecommunications in the
performance of their spectrum management functions.[51]
3.34
NSWCCL
commented that, while it had no objection to the proposed amendment in relation
to radiocommunications inspectors, 'any information concerning the content of
such material should be isolated from the provisions in the [TI Act] that
permit the use of legally obtained material for other purposes'.[52]
Ancillary offences (Part 3 of
Schedule 2)
3.35
Several submissions expressed specific support for the
proposed amendment in relation to expansion of the definition of 'class 1'
offence in the TI Act to include conduct comprising the offence of accessory
after the fact.[53] For example, SAPOL submitted
that it has experienced 'recent and current Major Crime investigations that
would have been assisted by the amendment being in force'.[54]
3.36
SAPOL submitted further that the amendment to include
accessory after the fact will be particularly useful for SAPOL since accessory
after the fact is no longer an offence in South Australia.[55]
3.37
WAPS submitted that the amendment will assist it and
other law enforcement agencies in Western Australia
to combat organised crime.[56]
3.38
However, the Law Council and NSWCCL held serious
misgivings about this aspect of the Bill. The
Law Council noted that the amendment would allow a warrant to intercept the
communications of a person who may be under suspicion for receiving or
assisting a person who is believed to have committed a 'class 1' offence. It
argued that such a power 'has the potential to be abused to intercept and
record communications of a person who is only suspected of aiding and abetting
after the fact'.[57]
3.39
The Law Council continued:
There is no further
justification for this new power other than comments in the Explanatory
Memorandum that “[Because this power is not presently available] ... an important
investigative tool is not available to law enforcement agencies ...” There is no
further justification, no precedent and no statistical evidence to substantiate
the removal of important rights of citizens to privacy in their
telecommunications. The argument expressed in the Explanatory Memorandum is
simply that law enforcement agencies would like this power, and the Bill will deliver it to them. There is no
justification, no balancing of the rights of individual citizens weighed
against this desire for the power.[58]
3.40
The Law
Council suggested that the ancillary offence provision be removed from the Bill
since it 'is an unjustified removal of civil liberties and has the potential to
be misused and cause a significant breach of the privacy and civil liberties of
those only suspected of crime'.[59]
3.41
NSWCCL was
similarly critical:
It is an example of the
slippery slope: of a dubious extension of the powers to intercept, especially
given the problems created by the definitions of terrorism offences, and some
of the circumstances in which profits are made from a crime. While aiding and
abetting a murder before the event creates an emergency, helping a person
dispose of the profit on a map recklessly supplied to someone who turns out to
be a member of a terrorist organisation does not.[60]
3.42
NSWCCL
also argued that:
The proposal that these
offences be made class one (rather than class two) offences is not justified. There
is no reason why a judge or an A[dministrative] A[ppeals] T[ribunal] member
should be prevented from considering the gravity of an offence and privacy considerations
before issuing a warrant allowing interception in relation to these offences.[61]
Civil forfeiture proceedings and
named person warrants (Part 4 of Schedule 2)
3.43
The committee received submissions from several
organisations expressing broad-level support for the proposed amendments in
relation to civil forfeiture proceedings and named person warrants.[62]
3.44
However,
NSWCCL were strongly opposed to Item 9 of Schedule 2[63] and suggested that it be removed from
the Bill.[64]
Amongst other things, it contended that:
The civil forfeiture
acts are obnoxious. They enable persons to have their assets removed if it is
held that it is more likely than not that they have committed a crime. These
persons do not have to have been convicted of the crime. Instead, the acts are
used where no conviction is possible, because the guilt of the accused person
cannot be proved beyond reasonable doubt.[65]
3.45
In
relation to Items 10, 12 and 14 of Schedule 2,[66]
NSWCCL welcomed the 'amplification of the requirements on the ombudsman' and the
requirement for agencies to report annual statistics relating to named person
warrants.[67] However, NSWCCL were
concerned that Recommendation 5 of the Sherman Report is not being implemented
by the Bill.[68]
It argued that:
Accountability
procedures for ASIO are particularly important, given both its past history and
the necessary secrecy under which it operates. ASIO is not being asked to
reveal its targets, nor how many they are, nor to indicate what kinds of
interceptions it uses, nor anything else about its methodology.
Such limited reporting
would not enable any target person or organisation to take counter-measures.[69]
3.46
NSWCCL
also submitted that the number of telecommunications interception warrants
refused should be published[70] since
this 'is important information, not only for ASIO's accountability, but also
for its reputation, and the confidence with which citizens can support it'.[71] It suggested that the Bill be amended to implement Recommendation 5 of
the Sherman Report.[72]
3.47
NSWCCL also objected strongly to the failure of the Bill
to implement Recommendation 8 of the Sherman Report.[73] It noted that:
Legislation that restricts keeping records of originals of
interceptions but permits the keeping of copies is ill-conceived. All the
reasons that apply to restricting the availability of originals apply also to
copies.
It is true that some forms of copying are difficult to police.
But that does not mean that they should be legalised.[74]
Clarification of 'employee of a carrier' (Part 5 of Schedule 2)
3.48
Only two submissions commented on, and supported, the
proposed clarification of the definition of 'employee of a carrier'.[75] The Commonwealth Director of Public
Prosecutions (DPP) submitted that:
This definition widens the concept of "employee of a
carrier" to include contractors or people working for a subsidiary company
of the carrier. This office welcomes the widening of this definition as it
reflects the practice of carriers to use the services of contractors and, in
particular, it would allow evidentiary certificates to be issued by a Managing
Director or Secretary of a carrier under section 61(1) of the Act which
included acts or things done by contractors to the carrier.[76]
The committee's view
3.49
The committee
acknowledges submissions and evidence that were strongly supportive of the Bill. However, the Committee also notes the
serious concerns raised by some submissions and witnesses. In particular,
the committee is mindful of the apprehension expressed by the Law Council and
NSWCCL, particularly with respect to the proposed exemption for
telecommunications interception to and from a declared 'emergency services
facility'.
3.50
In light of these concerns, the committee encourages further
consideration of the Bill's provisions by the
Blunn review of regulation of access to communications under the TI Act. The Government has appointed Mr Tony Blunn AO to review of the regulation of access to communications under the TI
Act. The review will consider the effectiveness and appropriateness of
the Act in light of new and emerging communications technology. The Committee
also understands that the review will look into relevant privacy concerns and
the need to balance these with the benefits stemming from telecommunications
interception carried out by enforcement and national security agencies. Key law enforcement and national security
agencies, representatives from the telecommunications industry, civil liberty
advocates and the legal profession are to be consulted.[77]
Definition of 'law enforcement
officer'
3.51
The committee notes the concerns raised in relation to the
proposed expansion of the definition of 'law enforcement officer' under proposed
paragraph 473.1(k) of the Bill. The committee acknowledges
advice from the Attorney-General's Department (the Department) that the aim of
the provision as currently drafted is to provide a practical way of allowing
new, restructured or renamed agencies to come within the operation of the
definition in the future.[78] The
committee notes further that, under paragraph 473.1(k), any such agencies would
be prescribed by regulation for the purposes of the definition (which is
subject to disallowance by Parliament). Nevertheless, the committee is of the
view that the Bill should be amended to specify
more clearly which agencies may be prescribed or included in the definition.
Recommendation 1
3.1 The committee recommends that proposed paragraph
473.1(k) of the Bill be amended to identify more
clearly which agencies may be included for the purposes of the definition of
'law enforcement officer' in the Criminal
Code Act 1995.
Exemption for an 'emergency
services facility'
3.52
The committee notes the need for emergency services
call centres to be able to record incoming and outgoing communications. It also
appreciates that exempting such recording under the TI Act by means of
references to telephone numbers is impractical. However, the committee also
acknowledges arguments criticising the broad nature of the Bill's
provisions and its potential intrusive consequences.
3.53
The committee notes the significant consequences of
declaring premises to be an 'emergency services facility'. As explained
elsewhere, it will mean that a very wide range of communications (including
information of a personal nature and information unrelated to emergencies)
within, and to and from, any premises designated as an 'emergency services
facility' may be lawfully recorded without the need to obtain a warrant and
without the need for any warning that this recording will occur. The committee
acknowledges that the Bill provides that the
Attorney-General may only declare premises to be an 'emergency services
facility' if he or she is satisfied that the premises are operated by a police,
fire, ambulance or related service for the purpose of dealing with requests for
assistance in emergencies. However, the exercise of this power – and the extent
to which these prerequisites are met – does not appear to be subject to parliamentary
or other scrutiny. One would reasonably expect executive powers to exempt law
enforcement from regulatory requirements (that is, such as the requirement to
obtain a warrant) to be subject to scrutiny and review.
3.54
Departmental representatives acknowledged the lack of
scrutiny, but suggested that any potential misuse of this power would be
avoided by the risk of evidence gathered by telecommunications interceptions
being rendered inadmissible on the grounds of illegality.[79] However, the committee has serious
reservations about this constituting the primary check on the integrity of the
powers since information obtained in such a way may not necessarily be relied
on as evidence in court proceedings and, even if it were, this would be well
after the power has been exercised.
3.55
Of particular concern to the committee are proposed
subsections 7(3AA), (3AB) and (3AC). These new subsections denote a major
change from the current provisions in the TI Act with respect to an 'emergency
services number'. The committee acknowledges that emergency services facilities
'represent critical operational infrastructure which needs close protection as
their loss would endanger the public for as long as these services were
unavailable'.[80] However the committee
is not satisfied that this warrants any declarations of an 'emergency services
facility' as being exempt from parliamentary scrutiny.
3.56
In this context, the committee notes subsections 6(3)
and (4) of the TI Act relating to the permitted interception without a warrant
of telephone calls to publicly listed Australian Security Intelligence
Organisation (ASIO) numbers. These subsections were inserted into the TI Act by
the Telecommunications (Interception) Amendment Bill 2004 (the TI
Bill), which was the subject of an inquiry
conducted by this committee. The TI
Bill removed the requirement that ASIO
notify callers that their calls are being recorded.
3.57
In its report in relation to the TI
Bill[81], the committee noted that the
proposed amendments were restricted to incoming calls only, and to calls made
to publicly-listed numbers. The committee was of the view that, while the
benefits of such an approach (or at least the arguments in support of such an
approach) are limited, the invasion of the privacy of individuals would be
minimal.[82]
3.58
The same cannot be said about the Bill's
proposed amendments in relation to prescribing an 'emergency services facility'
which include no such restrictions. For example, as the Minister for Justice
and Customs has stated the operation of the Bill
may capture 'hundreds, if not thousands, of numbers'.[83] The committee is concerned that the
balance between protecting the interests of law enforcement and protecting the
privacy of individuals, including employees of an 'emergency services
facility', may not be met appropriately in this case.
3.59
Therefore, the committee is of the view that any
declaration under proposed subsection 7(3AB) should be deemed a legislative
instrument for the purposes of the Legislative Instruments Act to allow full
and proper scrutiny by Parliament. However, in order to protect the interests
of vital infrastructure, the committee considers that the Bill
should provide that there is no requirement for the information provided to
Parliament to detail the specific location of the emergency services facility. Information
contained in the relevant legislative instrument could include identification of
the town or city, the region and the state/territory in which the 'emergency
services facility' is located. Specification of the facility and the service
concerned in general terms without identification of location would not, in the
committee's view, compromise the security of such facilities, but would enable
appropriate parliamentary scrutiny of this ministerial power.
3.60
In relation to concerns that the Bill
does not contain a requirement for emergency services interceptions to occur
lawfully in the course of a person's duties, the committee notes advice from
the Department that this was a drafting oversight.[84]
Recommendation 2
3.2 The committee recommends that the Bill
be amended to provide that any declaration of an 'emergency services facility'
under proposed subsection 7(3AB) is a legislative instrument for the purposes
of the Legislative Instruments Act 2003.
Recommendation 3
3.3 Further to Recommendation 2, the committee recommends
that the Bill be amended to authorise any declaration of an 'emergency services
facility' under proposed subsection 7(3AB) not to include details of the
specific location of an 'emergency services facility', but at the same time
contain adequate information to allow appropriate scrutiny by Parliament (such
as the name of the service and the region in which it is located, if possible).
Recommendation 4
3.4 The committee recommends that the Bill
be amended to require emergency services telecommunications interceptions 'to
occur lawfully in the course of a person's duties'.
Ancillary offences
3.61
The committee acknowledges the explanation given by the
Department at the hearing in relation to the Bill's
ancillary offence provision.[85] The
committee notes that the ancillary offences are not insubstantial offences.
They attract significant penalties. As such, the committee considers it
reasonable that they be treated in the same way as other criminal offences for
the purposes of telecommunications interception. The committee also notes
evidence that recourse to telecommunications interception for these ancillary
offences will be subject to the same checks and balances as those that apply to
primary offences.
3.62
The committee acknowledges concerns raised in relation
to Recommendation 5 of the Sherman Report. However, the committee notes that
the Federal Government has formally rejected Recommendation 5 of the Sherman
Report. Further, the committee notes that the Parliamentary Joint Committee on
ASIO, ASIS (Australian Secret Intelligence Service) and DSD (Defense Signals
Directorate) did not recommend such a change. The Federal Government has also argued
that ASIO discharges its accountability responsibilities by providing classified
reports both to the Federal Government and the Opposition. In light of this, the
committee does not consider it necessary to revisit this issue in the context
of the Bill.
3.63
In relation to Recommendation 6 of the Sherman Report,[86] the committee understands that the
Bill proposes to amend section 84 of the TI Act to require the Ombudsman to
include in its annual report to the Minister a summary of telecommunications
interception inspections conducted in the relevant year, together with a
summary of any deficiencies identified and any remedial action taken. The
committee notes that this is at odds with Recommendation 6 of the Sherman
Report which required a report to Parliament.
3.64
Representatives from the Department advised the
committee that it is intended that the Department's annual report to Parliament
prepared pursuant to the TI Act would include a summary of the information
recommended by the Sherman Report. However, the committee notes that there
would be no statutory obligation or requirement for the Attorney-General to
table such information in Parliament. The committee is therefore of the view
that this intention should be expressly specified in the TI Act.
Recommendation 5
3.5 The committee recommends that the Bill be amended to require
that the Attorney-General Department's annual report prepared under Division 2
of Part IX of the Telecommunications
(Interception) Act 1979 include a summary of telecommunications
interception inspections conducted in the relevant year, together with a
summary of any deficiencies identified and any remedial action taken (including
with respect to emergency services telecommunications interceptions).
Recommendation 6
3.6 Subject to the preceding recommendations, the committee
recommends that the Senate pass the Bill.
Senator Nigel
Scullion
Acting Chair
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