Telecommunications Interception Legislation Amendment Bill 2002
First Reading
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Telecommunications Interception Legislation Amendment Bill 2002
No. , 2002
(Attorney-General)
A Bill for an Act to amend the law relating to telecommunications
interceptions, and for related purposes
Contents
1 Short title 1
2 Commencement 1
3 Schedule(s) 3
Schedule 1--Miscellaneous amendments
4
Customs Act 1901 4
Telecommunications (Interception) Act 1979
4
Schedule 2--Amendment of the Telecommunications (Interception) Act 1979
relating to new and defunct State bodies
13
A Bill for an Act to amend the law relating to telecommunications
interceptions, and for related purposes
The Parliament of Australia enacts:
This Act may be cited as the
Telecommunications
Interception Legislation Amendment Act 2002.
(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.
| Commencement
information
|
| Column
1
|
Column
2
|
Column
3
|
| Provision(s)
|
Commencement
|
Date/Details
|
| 1.
Sections
1
to 3 and anything in this Act not elsewhere covered by this table
|
The
day on which this Act receives the Royal Assent
|
|
| 2.
Schedule 1, items 1 to 22
|
The
day on which this Act receives the Royal Assent
|
|
| 3.
Schedule 1, item 23
|
22 June
2000
|
|
| 4.
Schedule 1, items 24 to 28
|
The
day on which this Act receives the Royal Assent
|
|
| 5.
Schedule 1, item 29
|
22 June
2000
|
|
| 6.
Schedule 1, items 30 to 32
|
The
day on which this Act receives the Royal Assent
|
|
| 7.
Schedule 1, item 33
|
22 June
2000
|
|
| 8.
Schedule 1, items 34 to 36
|
The
day on which this Act receives the Royal Assent
|
|
| 9.
Schedule 1, item 37
|
22 June
2000
|
|
| 10.
Schedule 1, item 38
|
The
day on which this Act receives the Royal Assent
|
|
| 11.
Schedule 1, item 39
|
22 June
2000
|
|
| 12.
Schedule 1, items 40 to 46
|
The
day on which this Act receives the Royal Assent
|
|
| 13.
Schedule 2
|
The
day on which this Act receives the Royal Assent
|
|
Note:
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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.
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.
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
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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;
15 At the end of section 6
Add:
Delayed access message services--access to stored communications
(3) In this section, a delayed access message
service is a means by which a communication intended for a person can
be:
(a) submitted using a telecommunications system,
without the person being in direct contact with anyone submitting the
communication; and
(b) subsequently accessed by the person (whether or
not other persons might also be able to access it).
Note: Some common examples of delayed access message
services are e-mail services and voice mail services (if they are provided by
means of telecommunications systems).
(4) In this section, a stored
communication is a communication that:
(a) has been submitted using a delayed access
message service; and
(b) is stored on equipment; and
(c) can be accessed using that equipment, or that
equipment in combination with other equipment, but without using a line, unless
the use of the line is merely for the purpose of, or an incidental result of:
(i) turning on equipment; or
(ii) obtaining power required to operate equipment;
or
(iii) any other action prescribed by regulations for
the purposes of this subparagraph.
Example 1: An e-mail is a stored communication if it
has been down-loaded from a service provider onto a computer and can be
accessed using that computer without any further use of a line.
Example 2: A voicemail message is not a stored
communication if it can only be accessed by dialling a number.
(5) A stored communication is taken no longer to be
passing over a telecommunications system when it is accessed in accordance with
paragraph (4)(c).
Note: The heading to section 6DA is altered by
omitting "for use of listening devices".
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:
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(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:
20
Part VI (heading)
Repeal the heading, substitute:
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)
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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.
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)
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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)
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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).