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This is a Bill, not an Act. For current law, see the Acts databases.
2002
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
Customs Act
1901 4
Telecommunications (Interception) Act
1979 4
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 |
|
|
|
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: 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repealed as set out in the applicable items in the Schedule concerned, and any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.
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;
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:
(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)
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)
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).