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2022
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
NATIONAL ANTI-CORRUPTION COMMISSION (CONSEQUENTIAL AND
TRANSITIONAL PROVISIONS) BILL 2022
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be Moved on Behalf of the Government
(Circulated by authority of the
Attorney-General, the Hon Mark Dreyfus KC MP)
AMENDMENTS TO THE NATIONAL ANTI-CORRUPTION COMMISSION
(CONSEQUENTIAL AND TRANSITIONAL PROVISIONS) BILL 2022
(Government)
GENERAL OUTLINE
1. The purpose of these amendments to the National Anti-Corruption Commission (Consequential
and Transitional Provisions) Bill 2022 (the Consequential Bill) is to provide that:
• warrants, emergency authorisations and assistance orders under the Surveillance Devices
Act 2004 (SD Act); and
• warrants and international production orders Telecommunications (Interception and
Access) Act 1979 (TIA Act),
can only be issued to the National Anti-Corruption Commission (the NACC) by eligible Judges of
certain federal superior courts of record--being the Federal Court of Australia and the Federal
Circuit and Family Court of Australia (Division 1).
2. Consistent with the National Anti-Corruption Commission Bill 2022 (the NACC Bill) and the
Consequential Bill, these amendments would commence on a single day to be fixed by
Proclamation. However, if they do not commence within the period of 12 months beginning on
the day on which the NACC Bill receives the Royal Assent they would commence on the day
after the end of that period.
FINANCIAL IMPACT
3. There are no financial impacts associated with these amendments.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
National Anti-Corruption Commission (Consequential and Transitional Provisions) Bill
2022
1. The amendments to the Consequential Bill are compatible with the human rights and freedoms
recognised or declared in the international instruments listed in section 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011.
Overview of the Bill
2. The amendments to the Consequential Bill would amend the SD Act and TIA Act to provide that
warrants can only be issued under those Acts to the National Anti-Corruption Commission (the
NACC) by eligible judges of federal superior courts--being the Federal Court of Australia and
the Federal Circuit and Family Court of Australia (Division 1).
Human rights implications
The prohibition on interference with privacy contained in article 17 of the ICCPR
3. Article 17 of the ICCPR prohibits unlawful or arbitrary interference with a person's privacy,
family, home and correspondence, and prohibits unlawful attacks on a person's reputation. The
United Nations Human Rights Committee has interpreted the right to privacy as comprising
freedom from unwarranted and unreasonable intrusions into activities that society recognises as
falling within the sphere of individual autonomy.
4. The Consequential Bill would engage the right to privacy by, relevantly, amending the SD Act
and TIA Act to provide the Commissioner with a number of covert electronic surveillance
powers. These powers would allow for interference with an individual's privacy through
surveillance and the gathering of personal information.
5. The Consequential Bill would provide for warrants authorising the NACC to exercise such
powers to be issued at the same statutory thresholds that apply to other Commonwealth, state and
territory law enforcement and anti-corruption agencies, including the Australian Commission for
Law Enforcement Integrity and state anti-corruption commissions. The Consequential Bill would
also provide for those warrants to be issued by the same issuing authorities that issue warrants to
those other agencies--being an eligible Judge or a nominated Administrative Appeals Tribunal
(AAT) member.
6. The amendments would promote the right to privacy by requiring decisions about the issuing of
warrants authorising the use of covert electronic surveillance powers under the SD Act and
TIA Act to the NACC to be made by an eligible Judge of a federal superior court of record.
Restricting the power to issue electronic surveillance warrants to the NACC to senior members of
the federal judiciary would provide greater assurance that any exercise of the powers authorised
by those warrants would meet the statutory criteria for the issue of those warrants.
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NATIONAL ANTI-CORRUPTION COMMISSION (CONSEQUENTIAL AND
TRANSITIONAL PROVISIONS) BILL 2022
Amendments 1 to 3--Surveillance Devices Act 2004
1. These Amendments would amend the amendments to the SD Act contained in the Consequential
Bill to provide that:
• warrants under the SD Act can only be issued to the NACC;
• warrants issued to the NACC under the SD Act can only be revoked; and
• emergency authorisations given by the NACC under the SD Act can only be approved,
by superior Court Judges who have consented to being declared as eligible Judges for the
purposes of the SD Act, and whom the Minister administering the Judiciary Act 1903 has so
declared.
Amendment 1--new item 191A--Subsection 6(1)
2. This Amendment would insert new item 191A to the Consequential Bill to amend subsection 6(1)
of the SD Act to insert a new definition of 'superior Court Judge', being:
• a Judge of the Federal Court of Australia; or
• a Judge of the Federal Circuit and Family Court of Australia (Division 1).
3. The Federal Court of Australia and the Federal Circuit and Family Court of Australia (Division 1)
are each superior courts of record.
Amendment 2--new items 197A to 197D
4. This Amendment would insert new items 197A to 197D to the Consequential Bill.
New item 197A--Section 11
5. New item 197A would repeal section 11 of the SD Act (Who may issue warrants?) and substitute
a new section (Who may issue etc. warrants) providing that any warrant under Part 2 of the SD
Act may be issued by:
• in the case of an application for a warrant by a law enforcement officer of the NACC--
an eligible Judge; or
• in any other case--an eligible Judge or a nominated AAT member.
6. The purpose of this amendment is to provide that surveillance devices warrants, retrieval warrants
and computer access warrants may only be issued to the NACC by an eligible Judge. New
item 197B would amend the definition of eligible judge in relation to applications made by law
enforcement officers of the NACC, to limit that definition to superior Court Judges.
Warrants issued to law enforcement officers of the NACC
7. New subsection 11(2) would provide that applications made under Part 2 of the SD Act by law
enforcement officers of the NACC--including applications for the extension or variation of a
warrant under subsections 19(1) and 27F(1) of the SD Act--may be made only to an eligible
Judge who is a superior Court Judge.
8. New subsection 11(3) would provide that a warrant issued under Part 2 of the SD Act to a law
enforcement officer of the NACC may be revoked only by an eligible Judge who is a superior
Court Judge.
9. The limitations on whom law enforcement officers of the NACC may make applications to under
Part 2 of the SD Act, who may issue warrants to law enforcement officers of the NACC, and who
may revoke warrants issued to law enforcement officers of the NACC would apply despite any
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other provision in Part 2 that refers to nominated AAT members or a wider range of eligible
Judges.
10. The new section would not affect arrangements for warrant applications by, the issue of warrants
to, or the revocation of warrants issued to law enforcement officers of agencies other than the
NACC.
New item 197B--Subsection 12(1) (definition of eligible Judge)
11. New item 197B would repeal the definition of eligible Judge in subsection 12(1) of the SD Act
and substitute a new definition, being a person:
• in relation to whom a consent under subsection 12(2) and a declaration under subsection
12(3) are in force; and
• in relation any of the following issued to, or applied for by, a law enforcement officer of
the NACC--who is a superior Court Judge:
- a warrant;
- an emergency authorisation;
- an assistance order (within the meaning of subsection 64A(1)).
12. The effect of this amendment would be to provide that only a subset of all eligible Judges under
the SD Act are eligible Judges in respect of the NACC--being superior Court Judges. For
example, where:
• a law enforcement officer of the NACC has applied for a surveillance device warrant
under section 14 of the SD Act, that application could only validly be made under
subsection 14(4) to, or determined under subsection 16(1) by, an eligible Judge who is
also a superior Court Judge;
• a computer access warrant has been issued to a law enforcement officer of the NACC
under subsection 27C(1) of the SD Act:
- an application to extend or vary the warrant could only validly be made under
subsection 27F(2) to, or determined under subsection 27F(4) by, an eligible
Judge who is also a superior Court Judge; and
- the warrant could only be validly revoked under subsection 27G(1) by an eligible
Judge who is also a superior Court Judge; and
• a law enforcement officer of the NACC has applied for and been issued an emergency
authorisation by an appropriate authorising officer, and the appropriate authorising
officer (or a person on their behalf) applies for the approval of the emergency
authorisation under subsection 31(1) of the SD Act, that application could only validly be
made to, or determined under subsection 35(1) by, an eligible Judge who is also a
superior Court Judge.
13. Where a person has made an application for a warrant on behalf of a law enforcement officer of
the NACC, that application would be taken to be made by the law enforcement officer of the
NACC for the purposes of this definition.
14. The new definition would not affect the ability of other eligible Judges, or nominated AAT
members, to issue warrants to, and exercise powers in respect of, agencies other than the NACC.
New item 197C--Subsection 13(1)
15. New item 197C would amend subsection 13(1) of the SD Act, which deals with the nomination of
persons holding certain appointments to the AAT to issue warrants under Part 2 of the SD Act, to
clarify that such a nomination does not enable the person to issue warrants to law enforcement
officers of the NACC. This amendment would reflect the effect of new section 11 of the SD Act.
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New item 197D--Subsection 33(1)
16. New item 197D would repeal subsection 33(1) of the SD Act, which requires appropriate
authorising officers who give an emergency authorisation to a law enforcement officer (or another
person on the appropriate authorising officer's behalf) to apply to an eligible Judge or nominated
AAT member for approval of the giving of the emergency authorisation, and substitute a new
subsection.
17. New subsection 33(1) would require appropriate authorising officers (or another person on their
behalf) who have given an emergency authorisation to a law enforcement officer of the NACC to
apply to an eligible Judge who is also a superior Court Judge for the approval of the giving of
emergency authorisations.
18. The new subsection would not alter the approval arrangements for other Commonwealth, state or
territory agencies.
Amendment 3--new items 200A and 200B
19. This Amendment would insert new items 200A and 200B to the Consequential Bill. These items
would amend subsection 64A(1) of the SD Act, which enables law enforcement officers (or
another person on an officer's behalf) to apply to an eligible Judge or nominated AAT member
for an assistance order, requiring a specified person to provide any information or assistance that
is reasonable and necessary to allow the law enforcement officer to do certain things under,
relevantly to the NACC, a computer access warrant or emergency authorisation authorising
computer access, and insert a new subsection 64A(1A).
20. In combination, the amendments would require law enforcement officers of the NACC to apply to
an eligible Judge for assistance orders authorisations, consistent with the arrangements for
applications for warrants under Part 2 of the SD Act.
21. The amendments would not alter the arrangements for applications for assistance orders by other
Commonwealth, state or territory agencies.
Amendments 4 to 10--Telecommunications (Interception and Access) Act 1979
22. These Amendments would amend the amendments to the TIA Act contained in the Consequential
Bill to provide that warrants under the TIA Act can only be issued to the NACC by superior Court
Judges who have consented to being declared or appointed as an eligible Judge or issuing
authority for the purposes of the TIA Act, and whom the Attorney-General has so declared or
appointed.
Amendment 4--new item 213A--Subsection 5(1) (definition of issuing authority)
23. This Amendment would insert new item 213A to the Consequential Bill to repeal the definition of
'issuing authority' in subsection 5(1) of the TIA Act and substitute a new definition that applies
across the Act (exception when used in Schedule 1, which deals with international production
orders and contains its own definitions), being a person:
• in respect of whom an appointment is in force under section 6DB of the Act; and
• in relation to a warrant applied for by the NACC--who is a superior Court Judge.
24. Issuing authorities under the TIA Act are responsible for considering applications for stored
communications warrants by criminal law-enforcement agencies, which would include the
NACC, under Part 3-3 of the Act.
25. The effect of this amendment would be to provide that only a subset of all issuing authorities
under the TIA Act are issuing authorities in respect of the NACC--being superior Court Judges.
As such, where the NACC has applied for a stored communications warrant under section 110 of
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the TIA Act, that warrant could only be validly issued under subsection 116(1) by an eligible
Judge who is also a superior Court Judge.
26. The new definition would not affect the ability of other issuing authorities to issue stored
communications warrants to agencies other than the NACC.
Amendment 5--new item 215A--Subsection 5(1) (definition of Part 4-1 issuing
authority)
27. This Amendment would insert new item 215A to the Consequential Bill to repeal the definition of
'Part 4-1 issuing authority' in subsection 5(1) of the TIA Act and substitute a new definition,
being a person:
• in respect of whom an appointment is in force under section 6DC of the Act; and
• in relation to a warrant applied for by the NACC--who is a superior Court Judge.
28. Part 4-1 issuing authorities under the TIA Act are responsible for considering applications for
journalist information warrants by enforcement agencies, which would include the NACC, under
Part 4-1 of the Act.
29. The effect of this amendment would be to provide that only a subset of all Part 4-1 issuing
authorities under the TIA Act are Part 4-1 issuing authorities in respect of the NACC--being
superior Court Judges. As such, where the NACC has applied for a journalist information warrant
under section 180Q of the TIA Act, that warrant could only be validly issued under subsection
180T by an issuing authority who is also a superior Court Judge.
30. The new definition would not affect the ability of other Part 4-1 issuing authorities to issue
journalist information warrants to agencies other than the NACC.
Amendment 6--new item 224A--Subsection 5(1)
31. Amendment 6 would insert new item 224A to the Consequential Bill to amend subsection 5(1) of
the TIA Act to insert a new definition of 'superior Court Judge', being:
• a Judge of the Federal Court of Australia; or
• a Judge of the Federal Circuit and Family Court of Australia (Division 1).
32. The Federal Court of Australia and the Federal Circuit and Family Court of Australia (Division 1)
are each superior courts of record.
Amendment 7--New items 228A and 228B
33. This Amendment would insert new items 228A and 228B to the Consequential Bill.
Item 228A--Subsection 6D(1) (definition of eligible Judge)
34. Item 228A would repeal the definition of 'eligible Judge' in subsection 6D(1) of the TIA Act and
substitute a new definition, being a Judge:
• in relation to whom a consent under subsection 6D(2) and a declaration under subsection
6D3(3) are in force; and
• in relation to a warrant applied for by the NACC--who is a superior Court Judge.
35. Eligible Judges under the TIA Act are responsible, along with nominated AAT members, for
considering applications for interception warrants by interception agencies, which would include
the NACC, under Part 2-5 of the Act.
36. The effect of this amendment would be to provide that only a subset of all eligible Judges under
the TIA Act are eligible Judges in respect of the NACC--being superior Court Judges. For
example, where the NACC has applied for an interception warrant under section 39 of the
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TIA Act, that warrant could only validly be issued under subsections 46(1) or 46A(1) by an
eligible Judge who is also a superior Court Judge.
Item 228B--Subsection 6DA(1)
37. New item 228B would amend subsection 6DA(1) of the TIA Act, which deals with the
nomination of persons holding certain appointments to the AAT to issue interception warrants
under Part 2-5 of the TIA Act, to clarify that such a nomination does not enable the person to
issue warrants to the NACC. This amendment would reflect the effect of new item 228A inserted
by this Amendment and Amendment 8 which would amend the Consequential Bill to insert new
item 234A to amend subsection 39(1) of the TIA Act to provide that applications by the NACC
for interception warrants may only be made to an eligible Judge who is a superior Court Judge.
Amendment 8--New item 234A--Subsection 39(1)
38. This Amendment would amend the Consequential Bill to insert new item 234A, to repeal
subsection 39(1) of the TIA Act which provides that an interception agency, which would include
the NACC, may apply to an eligible Judge or nominated AAT member for an interception
warrant, and substitute a new subsection.
39. New subsection 39(1) would provide that an interception agency may apply for an interception
warrant to:
• in the case of an application made by the NACC--an eligible Judge; and
• in any other case--an eligible Judge or a nominated AAT member.
40. The purpose of this amendment is to provide that applications by the NACC for interception
warrants may only be made by an eligible Judge in respect of the NACC--being an eligible Judge
who is also a superior Court Judge.
41. The new section would not affect the ability for other interception agencies to apply to other
eligible Judges, or to nominated AAT member, for interception warrants.
Amendment 9--New items 251A to 251E
42. This Amendment would insert new items 251A to 251E to the Consequential Bill.
Item 251A--Clause 2 of Schedule 1 (definition of issuing authority).
43. This Amendment would insert new item 251A to the Consequential Bill to repeal the definition of
'issuing authority' in Clause 2 of Schedule 1 of the TIA Act and substitute a new definition that
applies in Schedule 1, which deals with international production orders, being a person:
• in respect of whom an appointment is in force under clause 16 of Schedule 1 of the Act;
and
• in relation to an international production order applied for by the NACC--who is a
superior Court Judge.
44. Issuing authorities under Schedule 1 of the TIA Act are responsible for considering applications
for international production orders for access to stored communications and telecommunications
data by criminal law-enforcement agencies and enforcement agencies, respectively, which would
include the NACC.
45. The effect of this amendment would be to provide that only a subset of all issuing authorities
under Schedule 1 of the TIA Act are issuing authorities in respect of the NACC--being superior
Court Judges. As such, where the NACC has applied for an international production order under
clauses 33 or 42 of Schedule 1 of the TIA Act, that order could only be validly issued under
clauses 39 or 48 by an issuing authority who is also a superior Court Judge.
46. The new definition would not affect the ability of other issuing authorities to issue international
production orders to agencies other than the NACC.
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Item 251B--Subclause 14(1) of Schedule 1
47. Item 251B would repeal the definition of 'eligible Judge' in subclause 14(1) of Schedule 1 the
TIA Act and substitute a new definition that applies in Schedule 1, which deals with international
production orders, being a Judge:
• in relation to whom a consent under subclause 14(2) of Schedule 1 and a declaration
under subclause 14(3) of Schedule 1 are in force; and
• in relation to an international production order issued to, or applied for by, the NACC--
who is a superior Court Judge.
48. Eligible Judges under Schedule 1 of the TIA Act are responsible, along with nominated AAT
members, for considering applications for international production orders for the interception of
communications by interception agencies, which would include the NACC.
49. The effect of this amendment would be to provide that only a subset of all eligible Judges under
Schedule 1 of the TIA Act are eligible Judges in respect of the NACC--being superior Court
Judges. For example, where the NACC has applied for an international production order under
clause 22 of Schedule 1 of the TIA Act, that order could only validly be issued under clause 30 of
Schedule 1 by an eligible Judge who is also a superior Court Judge.
Item 251C--Subclause 15(1) of Schedule 1
50. New item 251C would amend subclause 15(1) of Schedule 1 of the TIA Act, which deals with the
nomination of persons holding certain appointments to the AAT to issue international production
orders under Division 2 of Part 2 of Schedule 1 of the TIA Act, to clarify that such a nomination
does not enable the person to issue orders to the NACC. This amendment would reflect the effect
of new items 251B, 251D and 251E inserted by this Amendment, which would amend
subclause 14(1) and clause 22 of Schedule 1 of the TIA Act to provide that applications by the
NACC for international production orders for the interception of communications may only be
made to an eligible Judge who is a superior Court Judge.
Items 251D and 251E--Clause 22 of Schedule 1
51. New items 251D and 251E would amend clause 22 of Schedule 1 to provide that an interception
agency may apply for an international production order relating to the interception of
communications to:
• in the case of an application made by the NACC--an eligible Judge; or
• in any other case--an eligible Judge or a nominated AAT member.
52. The purpose of this amendment is to provide that applications by the NACC for international
production orders relating to the interception of communications may only be made an eligible
Judge in respect of the NACC--being an eligible Judge who is also a superior Court Judge.
53. The new section would not affect the ability for other interception agencies to apply to other
eligible Judges, or to nominated AAT members, for international production orders relating to the
interception of communications.
Amendment 10--New items 256A and 256B
54. New items 256A and 256B would amend clause 52 of Schedule 1 to provide that a Part 5.3 IPO
agency may apply for an international production order relating to the interception of
communications to:
• in the case of an application made by the NACC--an eligible Judge; and
• in any other case--an eligible Judge or a nominated AAT member.
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55. The purpose of this amendment is to provide that applications by the NACC for international
production orders relating to the interception of communications may only be made an eligible
Judge in respect of the NACC--being an eligible Judge who is also a superior Court Judge.
56. The new section would not affect the ability for other interception agencies to apply to other
eligible Judges, or to nominated AAT members, for international production orders relating to the
interception of communications.
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