Telecommunications Interception Legislation Amendment Act
2002
No. 67, 2002
An Act to amend the law relating to telecommunications
interceptions, and for related purposes
[Assented to 5
July 2002]
The Parliament of Australia enacts:
1 Short
title
This Act may be cited as the Telecommunications
Interception Legislation Amendment Act 2002.
2
Commencement
(1) Each provision of this Act specified in
column 1 of the table commences, or is taken to have commenced, on the day or
at the time specified in column 2 of the table.
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Commencement
information
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Column 1
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Column 2
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Column 3
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Provision(s)
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Commencement
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Date/Details
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1. Sections 1 to 3 and anything in this Act not elsewhere
covered by this table
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The day on which this Act receives the Royal Assent
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5 July 2002
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2. Schedule 1, items 1 to 14 and 16 to 22
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The day on which this Act receives the Royal Assent
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5 July 2002
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3. Schedule 1, item 23
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22 June 2000
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22 June 2000
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4. Schedule 1, items 24 to 28
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The day on which this Act receives the Royal Assent
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5 July 2002
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5. Schedule 1, item 29
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22 June 2000
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22 June 2000
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6. Schedule 1, items 30 to 32
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The day on which this Act receives the Royal Assent
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5 July 2002
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7. Schedule 1, item 33
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22 June 2000
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22 June 2000
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8. Schedule 1, items 34 to 36
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The day on which this Act receives the Royal Assent
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5 July 2002
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9. Schedule 1, item 37
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22 June 2000
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22 June 2000
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10. Schedule 1, item 38
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The day on which this Act receives the Royal Assent
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5 July 2002
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11. Schedule 1, item 39
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22 June 2000
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22 June 2000
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12. Schedule 1, items 40 to 46
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The day on which this Act receives the Royal Assent
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5 July 2002
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13. Schedule 2
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The day on which this Act receives the Royal Assent
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5 July 2002
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14. Schedule 3
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The day on which this Act receives the Royal Assent
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5 July 2002
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Note: This table relates only to the provisions of
this Act as originally passed by the Parliament and assented to. It will not be
expanded to deal with provisions inserted in this Act after assent.
(2) Column 3 of the table is for additional
information that is not part of this Act. This information may be included in
any published version of this Act.
3
Schedule(s)
Each Act that is specified in a Schedule
to this Act is amended or repealed as set out in the applicable items in the
Schedule concerned, and any other item in a Schedule to this Act has effect
according to its terms.
Schedule 1—Miscellaneous
amendments
Customs Act 1901
1 Subsection 219A(1)
(paragraph (a) of the definition of Judge)
Omit “Judge of the Federal Court of Australia”, substitute “Judge
of a court created by the Parliament”.
2 Subsection 219AA(1)
Omit “Judge of the Federal Court of Australia”, substitute “Judge
of a court created by the Parliament”.
Telecommunications (Interception) Act
1979
3 Subsection 5(1) (paragraph (d) of the definition of certifying
officer)
Repeal the paragraph, substitute:
(d) in the case of the Crime Commission:
(i) a member of the Crime
Commission; or
(ii) a member of the staff of
the Crime Commission who occupies an office or position at an equivalent level
to that of a senior executive officer within the meaning of the Public
Sector Management Act 1988 of New South Wales and who is authorised in
writing by the Commissioner of the Commission for the purposes of this
paragraph; or
4 Subsection 5(1) (paragraph (e) of the definition of certifying
officer)
Repeal the paragraph, substitute:
(e) in the case of the Independent
Commission Against Corruption:
(i) the Commissioner, or an
Assistant Commissioner, of the Independent Commission Against Corruption; or
(ii) an officer of the
Independent Commission Against Corruption who occupies an office or position at
an equivalent level to that of a senior executive officer within the meaning of
the Public Sector Management Act 1988 of New South Wales and who is
authorised in writing by the Commissioner of the Commission for the purposes of
this paragraph; or
5 Subsection 5(1) (subparagraph (g)(iii) of the
definition of certifying officer)
Repeal the subparagraph, substitute:
(iii) a member of the staff of
the Police Integrity Commission who occupies an office or position at an
equivalent level to that of a senior executive officer within the meaning of
the Public Sector Management Act 1988 of New South Wales and who is
authorised in writing by the Commissioner of the Commission for the purposes of
this paragraph; or
6 Subsection 5(1) (at the end of paragraphs (a) and (b)
of the definition of class 1 offence)
Add “or”.
7 Subsection 5(1) (after paragraph (c) of the
definition of class 1 offence)
Insert:
(ca) an offence constituted by conduct
involving an act or acts of terrorism; or
8 Subsection 5(1) (paragraph (d) of the definition of class
1 offence)
Omit “or (c)”, substitute “, (c) or (ca)”.
9 Subsection 5(1) (subparagraph (c)(iia) of the
definition of permitted purpose)
Omit “term of appointment or retirement”, substitute “term of
appointment, retirement or termination of appointment”.
10 Subsection 5(1) (at the end of the definition of permitted
purpose)
Add:
; or (f) in the case of the Anti‑Corruption
Commission:
(i) an investigation under the
Anti‑Corruption Commission Act into alleged corrupt conduct, criminal conduct,
criminal involvement or serious improper conduct by a police officer or other
public officer; or
(ii) a report on such an
investigation.
11 After paragraph 5B(e)
Insert:
(ea) a proceeding in so far as it relates
to:
(i) a decision by the Commissioner
of Police to terminate the employment of an AFP employee or the appointment of
a special member of the Australian Federal Police; or
(ii) a decision by the
Commissioner of a Police Force of a State to terminate the appointment of an
officer or member of staff of that Police Force; or
12 After subparagraph 5D(2)(b)(iii)
Insert:
(iiia) serious arson; or
13 At the end of paragraph 5D(2)(b)
Add:
; or (viii) the production,
publication, possession, supply or sale of, or other dealing in, child
pornography; or
(ix) consenting to or procuring
the employment of a child, or employing a child, in connection with child
pornography.
14 Paragraph 5D(4)(c)
Repeal the paragraph, substitute:
(c) section 122 of the Confiscation
Act 1997 of Victoria;
16 Section 6H
Omit “to in paragraphs 45(c) and (d), 45A(c) and (d), 46(1)(c)
and (d) or 46A(1)(c) and (d).”, substitute:
to in:
(a) in the case of a warrant under
section 48—paragraphs 45(c) and (d) or 46(1)(c) and (d), as the case
requires; or
(b) in the case of any other
Part VI warrant—paragraphs 45(c) and (d), 45A(c) and (d), 46(1)(c)
and (d) or 46A(1)(c) and (d), as the case requires.
17 Subparagraph 6K(c)(iii)
Repeal the subparagraph, substitute:
(iii) the Confiscation Act
1997 of Victoria;
18 After paragraph 6L(1)(e)
Insert:
(ea) in the case of the Australian
Federal Police:
(i) a proceeding against an
AFP employee in so far as the proceeding relates to a decision by the
Commissioner of Police to terminate the employment of the employee; or
(ii) a proceeding against a
special member of the Australian Federal Police in so far as the proceeding
relates to a decision by the Commissioner of Police to terminate the
appointment of the member; or
(eb) in the case of a Police Force of a
State—a proceeding against an officer or member of staff of that Police
Force in so far as the proceeding relates to a decision by the Commissioner of
that Police Force to terminate the appointment of the officer or member of
staff; or
19 Part V (heading)
Repeal the heading, substitute:
Part V—Emergency requests authorising officers of a carrier to
intercept telecommunications
20 Part VI (heading)
Repeal the heading, substitute:
Part VI—Warrants authorising agencies to intercept
telecommunications
21 Paragraph 33(a)
After “warrants”, insert “(other than warrants issued under
section 48)”.
22 Subparagraph 39(2)(d)(ii)
Repeal the subparagraph, substitute:
(ii) a member of the staff of
the Crime Commission; or
23 Section 47
Omit “Part VI warrant”, substitute “warrant issued under
section 45, 45A, 46 or 46A”.
24 Subsection 48(1)
Repeal the subsection, substitute:
(1) If an agency could apply for a warrant
under section 45 or 46 (authorising interceptions of communications to or
from a service), it may instead apply for a warrant under this section that
also authorises entry on premises. The agency does so by including in the
application that would otherwise have been made under section 45 or 46 a
request that the warrant also authorise entry on specified premises.
25 Paragraph 48(3)(a)
After “applies”, insert “under this section”.
26 At the end of paragraph 48(3)(a)
Add “and”.
27 Paragraph 48(3)(b)
Omit “the application includes a request that the warrant
authorise entry on specified premises and”.
28 At the end of paragraph 48(3)(b)
Add “and”.
29 Paragraph 48(3)(c)
Omit “section 45, 45A, 46 or 46A empowers”, substitute
“section 45 or 46 would empower”.
30 Paragraph 48(3)(c)
Omit “a warrant on the application”, substitute “a warrant if the
application had been made under either of those sections”.
31 After paragraph 48(3)(c)
Insert:
(ca) Division 3 has been complied
with in relation to the application; and
32 Subsection 48(4)
After “warrant”, insert “under this section”.
33 Subsection 48(6)
Repeal the subsection.
34 Subsection 49(7)
Omit “mentioned in paragraph 45(d), 45A(d), 46(1)(d) or
46A(1)(d), as the case may be.”, substitute:
mentioned in:
(a) in the case of a warrant issued
under section 48—paragraph 45(d) or 46(1)(d), as the case requires; or
(b) otherwise—paragraph 45(d), 45A(d),
46(1)(d) or 46A(1)(d), as the case requires.
35 Section 54
Omit “Part VI warrant”, substitute “warrant issued under
section 45, 45A, 46 or 46A”.
36 At the end of section 54
Add:
(2) A warrant issued to the Australian
Federal Police or under section 48 comes into force when it is issued.
37 Paragraph 58(1)(b)
After “warrant”, insert “(other than a warrant issued under
section 48)”.
38 Paragraph 60(1)(a)
After “warrant”, insert “(other than a warrant issued under
section 48)”.
39 Subsection 61(3)
Omit “Part VI warrant”, substitute “warrant issued under
section 45, 45A, 46 or 46A”.
40 At the end of subparagraph 68(c)(i)
Add “or”.
41 After subparagraph 68(c)(ii)
Insert:
(iia) an act or omission by an
AFP employee or special member of the Australian Federal Police that may give
rise to a decision by the Commissioner of Police to terminate the employment of
the employee or the appointment of the special member; or
42 At the end of subparagraph 68(d)(i)
Add “or”.
43 After subparagraph 68(d)(ii)
Insert:
(iia) an act or omission by an
officer or member of staff of the Police Force of a State that may give rise to
a decision by the Commissioner of that Police Force to terminate the
appointment of the officer or member of staff; or
44 Before paragraph 68(f)
Insert:
(ea) if the information relates, or
appears to relate, to a matter that may give rise to an investigation by the
Independent Commission Against Corruption—to the Commissioner of the
Independent Commission Against Corruption; and
45 Paragraph 81A(2)(g)
Omit “mentioned in paragraph 45(d), 45A(1)(d), 46(1)(d) or
46A(1)(d), as the case may be.”, substitute:
mentioned in:
(i) in the case of a warrant
issued under section 48—paragraph 45(d) or 46(1)(d), as the case requires;
or
(ii) otherwise—paragraph 45(d),
45A(d), 46(1)(d) or 46A(1)(d), as the case requires.
46 Paragraph 81C(2)(g)
Omit “mentioned in paragraph 45(d), paragraph 45A(1)(d), 46(1)(d)
or 46A(1)(d), as the case may be.”, substitute:
mentioned in:
(i) in the case of a warrant
issued under section 48—paragraph 45(d) or 46(1)(d), as the case requires;
or
(ii) otherwise—paragraph 45(d),
45A(d), 46(1)(d) or 46A(1)(d), as the case requires.
Schedule 2—Amendment of
the
Telecommunications (Interception) Act 1979 relating to new and defunct State
bodies
1 Subsection 5(1) (paragraph (f) of the definition of certifying
officer)
Omit “Criminal Justice Commission” (wherever occurring),
substitute “Crime and Misconduct Commission”.
2 Subsection 5(1) (subparagraph (h)(ii) of the
definition of certifying officer)
Omit “or” (last occurring).
3 Subsection 5(1) (paragraph (i) of the definition of certifying
officer)
Repeal the paragraph.
4 Subsection 5(1) (paragraph (f) of the definition of chief
officer)
Omit “Criminal Justice Commission”, substitute “Crime and
Misconduct Commission”.
5 Subsection 5(1) (paragraph (f) of the definition of chief
officer)
Omit “Chairman of the Commission”, substitute “Chairperson of the
Commission”.
6 Subsection 5(1) (paragraph (g) of the definition of chief
officer)
Repeal the paragraph.
7 Subsection 5(1) (paragraph (j) of the definition of chief
officer)
Repeal the paragraph, substitute:
(j) in the case of the Royal Commission
into Police Corruption—the person constituting that Royal Commission.
8 Subsection 5(1) (definition of commission member)
Repeal the definition.
9 Subsection 5(1) (paragraph (b) of the definition of Commissioner)
Omit “Criminal Justice Commission”, substitute “Crime and
Misconduct Commission”.
10 Subsection 5(1) (paragraph (b) of the definition of Commissioner)
Omit “Chairman”, substitute “Chairperson”.
11 Subsection 5(1)
Insert:
Crime and Misconduct Act means the Crime
and Misconduct Act 2001 of Queensland.
12 Subsection 5(1)
Insert:
Crime and Misconduct Commission means the
Crime and Misconduct Commission of Queensland.
13 Subsection 5(1) (definition of Criminal Justice Act)
Repeal the definition.
14 Subsection 5(1) (definition of Criminal Justice
Commission)
Repeal the definition.
15 Subsection 5(1) (paragraph (b) of the definition of eligible
authority)
Omit “the Royal Commission into the New South Wales Police
Service,”.
16 Subsection 5(1) (paragraph (c) of the definition of eligible
authority)
Omit “Criminal Justice Commission or the QCC”, substitute “Crime
and Misconduct Commission”.
17 Subsection 5(1) (at the end of paragraph (d) of the
definition of eligible authority)
Add “or the Royal Commission into Police Corruption”.
18 Subsection 5(1) (definition of member of the staff of
the QCC)
Repeal the definition.
19 Subsection 5(1) (paragraph (f) of the definition of officer)
Repeal the paragraph, substitute:
(f) in the case of the Crime and
Misconduct Commission—a commission officer (within the meaning of the Crime and
Misconduct Act); or
20 Subsection 5(1) (paragraph (g) of the definition of officer)
Repeal the paragraph.
21 Subsection 5(1) (paragraph (j) of the definition of officer)
Repeal the paragraph, substitute:
(j) in the case of the Royal Commission
into Police Corruption:
(i) the person constituting
that Royal Commission; or
(ii) a member of the staff of
that Royal Commission.
22 Subsection 5(1) (paragraph (d) of the definition of prescribed
investigation)
Omit “Criminal Justice Commission”, substitute “Crime and
Misconduct Commission”.
23 Subsection 5(1) (paragraph (d) of the definition of prescribed
investigation)
Omit “Criminal Justice Act”, substitute “Crime and Misconduct
Act”.
24 Subsection 5(1) (paragraph (e) of the definition of prescribed
investigation)
Repeal the paragraph.
25 Subsection 5(1) (paragraph (h) of the definition of prescribed
investigation)
Repeal the paragraph, substitute:
(h) in the case of the Royal Commission
into Police Corruption—an investigation that the Royal Commission is conducting
in the course of the inquiry it is commissioned to undertake.
26 Subsection 5(1) (definition of QCC)
Repeal the definition.
27 Subsection 5(1) (definition of Queensland Act)
Repeal the definition.
28 Subsection 5(1) (definition of Queensland crime
commissioner)
Repeal the definition.
29 Subsection 5(1) (paragraph (f) of the definition of relevant
offence)
Omit “Criminal Justice Commission”, substitute “Crime and
Misconduct Commission”.
30 Subsection 5(1) (paragraph (g) of the definition of relevant
offence)
Repeal the paragraph.
31 Subsection 5(1) (paragraph (j) of the definition of relevant
offence)
Repeal the paragraph, substitute:
(j) in the case of the Royal Commission
into Police Corruption—a prescribed offence that is an offence against the law
of Western Australia and to which a prescribed investigation relates.
32 Subsection 5(1)
Insert:
Royal Commission into Police Corruption means
the Royal Commission established by the Governor of Western Australia by
Commission dated 12 December 2001 to inquire into, and report on whether,
since 1 January 1985, there has been corrupt conduct or criminal conduct
by any Western Australian police officer.
33 Subsection 5(1) (definition of Royal Commission into
the New South Wales Police Service)
Repeal the definition.
34 Paragraph 5B(i)
Repeal the paragraph, substitute:
(i) a proceeding of the Royal
Commission into Police Corruption; or
35 Subparagraph 6A(1)(c)(iii)
Omit “Criminal Justice Commission”, substitute “Crime and
Misconduct Commission”.
36 Subparagraph 6A(1)(c)(iv)
Repeal the subparagraph.
37 Subparagraph 6A(1)(c)(ix)
Repeal the subparagraph, substitute:
(ix) the Royal Commission into
Police Corruption.
38 Paragraph 6L(2)(b)
Omit “the Royal Commission into the New South Wales Police
Service,”.
39 Paragraph 6L(2)(c)
Omit “Criminal Justice Commission or the QCC”, substitute “Crime
and Misconduct Commission”.
40 Paragraph 6L(2)(d)
After “Anti‑Corruption Commission”, insert “or the Royal
Commission into Police Corruption”.
41 Paragraph 39(2)(f)
Repeal the paragraph, substitute:
(f) in the case of the Crime and
Misconduct Commission—a commission officer (within the meaning of the Crime and
Misconduct Act); or
42 Subparagraph 39(2)(h)(ii)
Omit “or”.
43 Paragraph 39(2)(i)
Repeal the paragraph.
44 Paragraph 68(e)
Repeal the paragraph.
45 Paragraph 68(h)
Repeal the paragraph, substitute:
(h) if the information relates, or
appears to relate, to a matter that may give rise to an investigation by the
Crime and Misconduct Commission—to the Commissioner of the Crime and Misconduct
Commission; and
(i) if the information relates, or
appears to relate, to a matter that may give rise to an investigation by the
Royal Commission into Police Corruption—to the person constituting that Royal
Commission.
46 Transitional
(1) Any action taken or any other thing done by, or in
relation to, the Criminal Justice Commission of Queensland or the Queensland
Crime Commission established by the Crime Commission Act 1997 of
Queensland before the commencement of this Schedule under or for the purposes
of the Telecommunications (Interception) Act 1979 is to be treated for
the purposes of that Act after that commencement as if it had been taken
or done by or in relation to the Crime and Misconduct Commission of Queensland.
(2) The Governor‑General may make regulations in
relation to transitional matters that:
(a) relate to the operation of the Telecommunications
(Interception) Act 1979 and arise out of the merging of the Criminal
Justice Commission of Queensland and the Queensland Crime Commission established
by the Crime Commission Act 1997 of Queensland to form the Crime and
Misconduct Commission of Queensland; or
(b) otherwise arise out of the enactment
of this Schedule.
(3) Regulations made for the purposes of
paragraph (2)(a) have effect despite subitem (1).