Scrutiny of Bills Seventeenth Report of 1999


Telecommunications (Interception) Amendment Bill 1999

Introduction

The Committee dealt with this bill in Alert Digest No. 14 of 1999, in which it made various comments. The Attorney-General has responded to those comments in a letter dated 18 October 1999. A copy of the letter is attached to this report. An extract from the Alert Digest and relevant parts of the Attorney-General's response are discussed below.

Extract from Alert Digest No. 14 of 1999

This bill was introduced into the House of Representatives on 2 September 1999 by the Attorney-General. [Portfolio responsibility: Attorney-General]

The bill proposes to amend the Telecommunications (Interception) Act 1979 and the Telecommunications (Interception) and Listening Device Amendment Act 1997 to permit the Anti-Corruption Commission of Western Australia (ACC) and the Queensland Crime Commission (QCC) to:

  • receive intercepted information originally obtained by another agency where that information appears to relate to conduct that the ACC or QCC may investigate;
  • use intercepted information for an investigation it is undertaking in relation to its functions;
  • obtain warrants to intercept information, provided the Attorney-General first issues a declaration under section 34 of the Interception Act; and
  • permit the Minister to continue to nominate specified members of the AAT to issue interception warrants for law enforcement.

General comment

This bill proposes to further increase the number of agencies entitled to receive and use information gained from the interception of telecommunications.

The core provision of the Telecommunications (Interception) Act 1979 is section 7. This section prohibits the interception of communications passing over a telecommunications system. The balance of the Act as originally passed set out certain specified exceptions to this provision in “special circumstances”. These exceptions were intended to achieve the objects of the bill, which was introduced as part of a legislative package to reform the powers of ASIO, and to facilitate the investigation of narcotics offences (see Senate, Hansard, 8 March 1979, pp 646-649).

The Act has since been amended to widen the number of exceptions to section 7, and to increase the range of “special circumstances”. For example, in 1992 there were four exceptions in the balance of section 7. By 1998, these exceptions had grown to eight.

In Alert Digest No 7 of 1997, this Committee considered the Telecommunications (Interception) and Listening Devices Amendment Bill 1997. In discussing that bill, the Committee expressed its concern at the proposed extension to the Police Integrity Commission of access to the telecommunications interception powers. The Committee observed that that bill was “again an extension of an intrusive power and, as such, a fresh example of legislative creep”.

This bill now seeks to extend access to the telecommunications interception powers to the Anti-Corruption Commission of Western Australia and the Queensland Crime Commission. It is yet another “fresh example of legislative creep”.

While conscious of the need to adequately investigate “corruption by public officials, paedophilia and organised crime”, which is the explanation for the latest extensions, and while remaining conscious of the safeguards contained elsewhere in the Act, the Committee seeks the Attorney-General's advice as to the reasons for the continuous weakening of the prohibition contained in section 7 of the Principal Act, and the continuous extension of access to the Act's exceptional powers.

Pending the Attorney's advice, the Committee draws Senators' attention to these provisions, as they may be considered to trespass unduly on personal rights and liberties, in breach of principle 1(a)(i) of the Committee's terms of reference.

Extract from the response from the Attorney-General

The Committee is concerned that conferring eligible authority status on the Western Australian Anti-Corruption Commission (ACC) and the Queensland Crime Commission (QCC) might be an extension of an intrusive power by legislative creep. I do not believe this is the case.

The QCC was established under the Crime Commission Act 1997 (QLD). It has a responsibility to investigate criminal paedophilia and major and organised crime. The proposed amendments to the Telecommunications (Interception) Act 1979 (the Act) dealing with the QCC will not permit any wider use of telecommunications interception than is currently possible. The Bill merely takes into account the decision of the Queensland Parliament to transfer responsibilities for investigating organised and major crime from the Queensland Criminal Justice Commission (CJC) to the QCC. In performing its statutory functions, in relation to organised and major crime, the QCC will not have any powers under the Act which were not available to the CJC for the same purpose. The amendments also support the use of telecommunications interception for the investigation of criminal paedophilia. The QCC's investigations in this area are special circumstances which warrant an exception from the provisions in section 7 of the Act.

The ACC is established by the Anti-Corruption Commission Act 1988 (WA). The ACC's role includes the receiving of or initiating allegations of corrupt conduct, criminal conduct, criminal involvement or serious improper conduct about police officers and other public officers. The matters which the ACC investigate are of a serious nature and require the best tools of investigation. I consider that enabling the ACC to receive intercepted material and, if declared, to undertake interception in its own right, is an exception to section 7 of the Act which constitutes the special circumstances envisaged when the Act was originally passed.

Experience has shown that covert surveillance is one of the most powerful investigative tools for uncovering and prosecuting crime. In the 1997/98 Telecommunications (Interception) Act's Annual Report, the following results were reported:

  • 625 arrests on the basis of information that was or included lawfully obtained information;
  • 451 prosecutions on the basis of lawfully obtained information;
  • 329 convictions on the basis of lawfully obtained information;
  • 4 prosecutions on the basis of lawfully obtained information by eligible authorities of a State; and
  • 2 convictions on the basis of lawfully obtained information by eligible authorities of a State.

The Committee thanks the Attorney-General for this response which addresses most of its concerns. However, it is not clear whether the Queensland Criminal Justice Commission is to retain any interception powers under this bill in addition to those interception powers to be conferred on the Queensland Crime Commission. The Committee would appreciate the Attorney's further advice on this issue.

Barney Cooney

Chairman