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2019-2020-2021-2022
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
TELECOMMUNICATIONS (INTERCEPTION AND ACCESS) AMENDMENT
(CORRECTIVE SERVICES AUTHORITIES) BILL 2022
EXPLANATORY MEMORANDUM
(Circulated by authority of the
Minister for Home Affairs, the Honourable Karen Andrews MP)
TELECOMMUNICATIONS (INTERCEPTION AND ACCESS) AMENDMENT
(CORRECTIVE SERVICES AUTHORITIES) BILL 2022
GENERAL OUTLINE
1. The Telecommunications (Interception and Access) Amendment (Corrective Services
Authorities) Bill 2022 (the Bill) amends the Telecommunications (Interception and Access)
Act 1979 (TIA Act) to provide State and Territory corrective services authorities with the
ability to access telecommunications data under the TIA Act.
2. Illicit mobile phones pose a serious threat within correctional facilities. They are used
to organise escape attempts, threaten the safety of victim and witnesses, organise trafficking
of contraband, as well as facilitate behaviour contrary to national security interests.
Telecommunications data is especially vital in establishing the ownership or location of
mobile phones used to commit offences within correctional facilities.
3. This Bill will assist corrective services authorities to better identify, investigate and
prevent illicit mobile phone related crime in correctional facilities. This will aid the detection
and prosecution of criminal offences, mitigating the risk posed to national security and
public order.
4. The Bill provides that State and Territory corrective services authorities are
enforcement agencies for the purposes of access to telecommunications data once
individually declared by the Minister. The declaration can only be made if requested by the
relevant State or Territory corrective services Minister.
5. This will ensure only those States and Territories which want this power will be able
to request it, and also that the Commonwealth Minister can ensure authorities can only
access data once they have demonstrated their readiness to do so. This might include the
Commonwealth Minister having regard to the authority's privacy arrangements, the policies
and procedures it has in place to govern access to data and the arrangements for the
Commonwealth Ombudsman to conduct oversight, including any financial implications.
6. The existing power in the TIA Act for the Minister to declare new enforcement
agencies is temporary and declarations expire after 40 sitting days. It is designed to be used
while substantive legislative change is considered by the Parliament. In contrast, the new
declaration power for corrective services authorities is not temporary in nature. Rather, it is a
mechanism to ensure legislative change is not required each time a new State or Territory
corrective services authority requests the power and is ready to use it.
7. Declarations for corrective services authorities may be subject to conditions. For
example, a declaration could provide that a corrective services authority is not able to apply
for journalist information warrants.
8. Corrective services authorities declared under the new powers will be subject to the
same level of oversight by the Commonwealth Ombudsman as existing enforcement
agencies. Further, a declaration must be revoked by the Commonwealth Minister if the
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relevant State/Territory Minister for a corrective services authority requests the
Commonwealth Minister to do so. The Commonwealth Minister may also revoke a
declaration if satisfied that compliance by the authority with the TIA Act has been
unsatisfactory. This provides a suitable level of accountability and oversight to ensure
agencies access and use telecommunications data in an appropriate manner.
9. The Bill implements part of the Government's Response to the Comprehensive
Review of the Legal Framework of the National Intelligence Community (Comprehensive
Review). The Government agreed with the Comprehensive Review's recommendation that
corrective services authorities should have the ability to access telecommunications data
under the TIA Act, where the relevant State or Territory corrective services Minister has
requested access.
FINANCAL IMPACT
10. The Bill has nil financial impact. Oversight of additional agencies could have a
financial impact for the Office of the Commonwealth Ombudsman, this will be assessed and
resolved with the Ombudsman and the relevant State or Territory prior to any declaration
being made by the Commonwealth Minister.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Telecommunications (Interception and Access) Amendment (Corrective Services
Authorities) Bill 2022
The Telecommunications (Interception and Access) Amendment (Corrective Services
Authorities) Bill (the Bill) is 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
The Bill amends the Telecommunications (Interception and Access) Act 1979 (TIA Act) to
provide that State and Territory corrective services authorities are enforcement agencies for
the purposes of accessing telecommunications data under the TIA Act, where a declaration
under subsection 176B(3) by the Minister for Home Affairs is in force. Before a declaration
can be made under subsection 176B(3), the relevant State or Territory Minister for a
corrective services authority must request the Commonwealth Minister to declare the
authority to be an enforcement agency for the purposes of the TIA Act. A declaration under
subsection 176B(3) is a legislative instrument and, noting the intrusive nature of the powers,
may be subject to conditions.
In considering whether to make the declaration, the Commonwealth Minister may consult
such persons or bodies as the Minister thinks fit, such as the Privacy Commissioner and the
Ombudsman. Consistent with the consultation provision in existing subsection 176A(5), such
consultation is not mandatory.
Importantly, a declaration must be revoked by the Commonwealth Minister if the relevant
State or Territory Minister for a corrective services authority requests the Commonwealth
Minister to do so. The Commonwealth Minister may also revoke a declaration relating to a
corrective services authority if the Commonwealth Minister is satisfied that the authority's
compliance with the TIA Act is unsatisfactory. Any revocation of a declaration by the
Commonwealth Minister will be a legislative instrument for the purposes of the Legislation
Act 2003.
Human rights implications
The Bill engages the right to privacy in Article 17 under the International Covenant on Civil
and Political Rights (ICCPR). This is on the basis that the telecommunications data retained
pursuant to subsection 187A(1) of the TIA Act can be made accessible to corrective service
authorities, once the authority has been individually declared by the Commonwealth
Minister, pursuant to a request from the relevant State or Territory Minister and the authority
makes a valid request for the data in accordance with the TIA Act.
Article 17 of ICCPR provides that no one shall be subjected to arbitrary or unlawful
interference with his or her privacy, family, home or correspondence, nor to unlawful attacks
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on his or her honour and reputation, and that everyone has the right to the protection of the
law against such interference or attacks.
The protection against arbitrary or unlawful interference with privacy under Article 17 can be
permissibly limited where the limitations are lawful and not arbitrary. The term 'unlawful' in
Article 17 of the ICCPR means that no interference can take place except as authorised under
domestic law. The term 'arbitrary' in Article 17(1) of the ICCPR means that any interference
with privacy must be in accordance with the provisions, aims and objectives of the ICCPR
and should be reasonable in the particular circumstances. The United Nations Human Rights
Committee has interpreted 'reasonableness' to mean that any limitation must be proportionate
and necessary in the circumstances to achieve a legitimate objective.
The Bill limits the right to privacy as it allows access to telecommunications data as
authorised under domestic law--namely the TIA Act. However, the limitations on a person's
right to privacy by allowing access to such data is reasonable when considering:
• the threat posed by illicit mobile phones in correctional facilities, including their use
to facilitate serious offences such as escape attempts, threatening the safety of victim
and witnesses and the trafficking of contraband
• the functions of corrective services authorities and criticality of such data to detect,
investigate and prosecute offences related to correctional facilities, and
• safeguards in place to minimise the privacy impacts on any persons to whom the data
relates or is appreciably linked to.
The Bill addresses the legitimate objectives of national security, public order and the rights
and freedoms of others. Telecommunications data is especially vital in establishing the
ownership or location of mobile phones used to commit offences within correctional
facilities.
Access to telecommunications data enabled by this Bill will assist corrective service
authorities to better identify, investigate and prevent illicit mobile phone related crime in
correctional facilities, ensuring any criminal offences are appropriately detected and
prosecuted, mitigating the risk posed to national security, public order and the rights and
freedoms of others.
The Bill includes multiple safeguards to ensure appropriate oversight. Before a corrective
services authority can access telecommunications data, the Commonwealth Minister must
issue a declaration that the authority is an enforcement agency. Before issuing a declaration,
the Commonwealth Minister will consider whether the agencies have demonstrated their
readiness to do so (for example, having regard to the authority's privacy arrangements,
ensuring appropriate policies and procedures to govern access to, and use, of data are in place
and having engaged with the Commonwealth Ombudsman regarding oversight).
The declaration can only be made if requested by the relevant State or Territory Minister.
This will ensure only those States and Territories that require access to telecommunications
data will be able to access it.
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Consistent with the existing power, declarations for corrective services authorities may be
subject to conditions. For example, a declaration could provide that a corrective services
authority is not able to apply for journalist information warrants, as these type of warrants are
not relevant to the functions of the authority or the purposes for which they seek access to
telecommunications data. This ensures any limitation on the right to privacy is reasonable and
proportionate and only to the extent necessary for the authorities to meet the legitimate
objectives.
Declarations must be revoked if requested to do so by the relevant State or Territory Minister.
Further, the Commonwealth Minister may revoke a declaration if they are satisfied that an
authority's compliance with the TIA Act has been unsatisfactory. This is intended to cover
potential ongoing and serious disregard for the obligations in the TIA Act, including privacy
breaches and an unwillingness to engage with and respond to issues identified by the
Commonwealth Ombudsman.
These safeguards provide a suitable level of accountability and oversight to ensure authorities
access and use telecommunications data in an appropriate manner.
The Bill does not change the statutory threshold under which enforcement agencies are able
to access telecommunications data and does not amend the existing processes for lawfully
accessing telecommunications data. Further, any corrective services authority declared by the
Commonwealth Minister will be subject to the existing oversight and reporting requirements
under the TIA Act, including:
• independent oversight by the Commonwealth Ombudsman, who will inspect the
records to determine the extent of an authority's (and its officers') compliance with
Chapter 4 of the TIA Act. The Ombudsman will also report annually to the Minister
for Home Affairs about the results of those inspections which are then tabled in
Parliament; and
• the Minister for Home Affairs' annual report to Parliament on the operation of the
data retention scheme, as required by section 187P of the TIA Act.
Conclusion
The Bill is made for the legitimate purpose of protecting national security, public order and
the rights and freedoms of others. The Bill is compatible with human rights as set out above,
and to the extent that it may limit human rights, those limitations are reasonable, necessary
and proportionate.
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NOTES ON CLAUSES
Preliminary
Clause 1 - Short title
1. This clause provides for the short title of the Act to be the Telecommunications
(Interception and Access) Amendment (Corrective Services Authorities) Act 2022.
Clause 2 - Commencement
2. This clause provides for the commencement of each provision in the Bill, as set out in
the table. The whole of the Act will commence the day after the Act receives the Royal
Assent.
3. This means the Commonwealth Minister will be able to make a declaration under new
section 176B of the Telecommunications (Interception and Access) Act 1979 (TIA Act) from
commencement of the Act if requested by the relevant State or Territory corrective services
Minister.
Clause 3 - Schedules
4. Each Act specified in a Schedule to this Act is amended or repealed as is set out in the
applicable items in the Schedule. Any other item in a Schedule to this Act has effect
according to its terms.
Schedule 1--Amendments
Telecommunications (Interception and Access) Act 1979
Item 1 - Subsection 5(1)
5. This item inserts a definition of corrective services authority into subsection 5(1) of
the TIA Act. Subsection 5(1) states that the definition of corrective services authority has the
meaning given by section 176B (see item 4).
6. A definition of corrective services authority is required for the new declaration power
in section 176B.
Item 2 - Subsection 5(1) (paragraph (o) of the definition of officer)
7. This item inserts a reference to subsection 176B(3) in paragraph (o) of the definition
of officer in subsection 5(1) of the TIA Act. This provides that, in the case of an enforcement
agency for which a declaration under subsection 176A(3) or 176B(3) is in force--a person
specified, or of a kind specified, in the declaration will be an 'officer' of the enforcement
agency for the purposes of the TIA Act.
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Item 3 - After paragraph 176A(1)(b)
8. This item inserts paragraph 176A(1)(c) into the TIA Act to include, as an
enforcement agency, a corrective services authority for which a declaration under
subsection 176B(3) is in force.
9. This is subject to subsection 176B(7), which relates to conditions on declarations.
This subsection provides that without limiting subsection 176B(6) (which states that
declarations may be subject to conditions), a condition may provide that the corrective
services authority is not to exercise a power conferred on an enforcement agency by or under
a specified provision in Chapter 4 of the TIA Act. If such a condition is imposed, the
corrective services authority is taken, for the purposes of the TIA Act, not to be an
enforcement agency for the purposes of that provision.
10. This acknowledges that a declaration under subsection 176B(3) may be subject to
conditions, including those which may limit the extent to which a corrective services
authority is taken to be an enforcement agency under Chapter 4 of the TIA Act.
Item 4 - After section 176A
11. This item inserts new section 176B which defines a corrective services authority for
the purposes of the TIA Act and sets up the process for the Commonwealth Minister to
declare a corrective services authority to be an enforcement agency for the purposes of
accessing telecommunications data under Chapter 4 of the TIA Act.
Subsection 176B(1)
12. Subsection 176B(1) defines a corrective services authority as a State/Territory
authority that is responsible for providing corrective services.
13. A 'State/Territory authority' is defined in subsection 176B(13).
Subsection 176B(2)
14. Subsection 176B(2) provides that the State/Territory Minister for a corrective services
authority may request the Commonwealth Minister to declare the authority to be an
enforcement agency. The terms 'State/Territory Minister' and 'Commonwealth Minister' are
both defined in subsection 176B(13).
15. To satisfy the requirement in subsection 176B(4), this ensures only those State and
Territory corrective services authorities which want the ability to access telecommunications
data will be able to do so, upon request to the Commonwealth Minister.
Subsection 176B(3)
16. Subsection 176B(3) provides that the Commonwealth Minister may, by legislative
instrument, declare a corrective services authority to be an enforcement agency (paragraph
176B(3)(a)); and persons specified, or of a kind specified, in the declaration to be officers of
the enforcement agency for the purposes of the TIA Act (paragraph 176B(3)(b)).
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17. The ability to make a declaration is at the discretion of the Commonwealth Minister
and is contingent on a request being made by the State/Territory Minister for the corrective
services authority under subsection 176B(2).
18. Noting the intrusive nature of the powers, the Commonwealth Minister would have
regard to an authority's readiness to access these powers before issuing a declaration.
19. This might include considering the authority's privacy arrangements and the way in
which they handle personal information and the policies and procedures they have put in
place to govern access to data. The Minister would also be able to ensure the necessary
arrangements are in place with the Commonwealth Ombudsman regarding oversight of the
use of these powers, including that any financial implications have been considered and
addressed.
20. In this way, the new declaration power can be contrasted with the temporary
declaration power in section 176A of the TIA Act. That power is broad in terms of the
agencies which can be declared, and is only intended to be used as a temporary measure
pending parliamentary consideration of legislative amendments. For this reason, it is time
limited and contains a prescriptive process for the Commonwealth Minister to exercise their
power.
21. In contrast, the power in new section 176B is limited to corrective services authorities
and is administrative in nature. That is, it is for the Minister to consider whether, after
receiving a request from the relevant State/Territory Minister, the corrective services
authority is ready to exercise the power before declaring the authority as an enforcement
agency. It is for this reason that the requirements for the Minister to make the declarations in
proposed section 176B are different from those in section 176A.
22. Declarations made by the Minister are legislative instruments. This means they will
be published on the Federal Register of Legislation, tabled in Parliament and subject to
disallowance.
Subsection 176B(4)
23. Subsection 176B(4) provides that the Commonwealth Minister must not make a
declaration unless the State/Territory Minister for the corrective services authority has made a
request under subsection (2).
24. This ensures corrective services authorities must demonstrate a willingness to be
declared an enforcement agency by the Commonwealth Minister.
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Subsection 176B(5)
25. Subsection 176B(5) provides that in considering whether to make the declaration, the
Commonwealth Minister may consult such persons or bodies as they think fit. Noting the
importance of privacy and oversight in relation to telecommunications data, this provision
specifically notes the Privacy Commissioner and the Ombudsman as particularly relevant
stakeholders. Consistent with the consultation provision in existing subsection 176A(5), such
consultation is not mandatory.
Subsections 176B(6) and (7)
26. Subsection 176B(6) provides that the declaration of a corrective services authority as
an enforcement agency may be subject to conditions. It is not necessary that declarations
have conditions.
27. Subsection 176B(7) states that, without limiting subsection (6), a condition may
provide that the corrective services authority is not to exercise a power conferred on an
enforcement agency by or under a specified provision in Chapter 4 of the TIA Act. The
corrective services authority is taken, for the purposes of the TIA Act, not to be an
enforcement agency for the purposes of that provision.
28. These provisions take into account the different status of corrective services
authorities to the agencies that currently have powers under Chapter 4 of the TIA Act. As the
functions of a corrective services authority differ from those of a criminal law enforcement
agency or national security agency, subsections 176B(6) and (7) allow for constraints on the
power of corrective service authorities declarations under the TIA Act.
29. This ensures the powers given to a corrective services authority are necessary and
proportionate and can be tailored to the specific circumstances of each corrective services
authority and the extent to which it requires access to telecommunications data.
30. For example, a declaration could provide that a corrective services authority is not
able to apply for journalist information warrants.
Subsections 176B(8) and (9)
31. Subsection 176B(8) allows the State/Territory Minister for a corrective services
authority to request the Commonwealth Minister to revoke a declaration relating to the
authority. There are no prerequisites for the State/Territory Minister to make this request.
32. Subsection 176B(9) requires the Commonwealth Minister, by legislative instrument,
to revoke a declaration if they receive a request to do so from the relevant State/Territory
Minister.
33. These subsections mean a request from a State/Territory Minister to revoke a
declaration will result in the corrective services authority no longer being considered an
enforcement agency under the TIA Act.
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34. This approach is consistent with sections 34 and 37 of the TIA Act in relation to the
declaration of eligible authorities as agencies for the purposes of intercepting
communications.
Subsection 176B(10)
35. Subsection 176B(10) provides that the Commonwealth Minister may, by legislative
instrument, revoke a declaration under subsection (3) independently of a request from the
relevant State/Territory Minister if the Commonwealth Minister is satisfied that the extent of
compliance by the authority with the TIA Act has been unsatisfactory.
36. The extent of non-compliance that would be unsatisfactory for the purposes of
revoking the declaration is intended to be systematic and serious deficiencies. It is not
intended to capture any instance of non-compliance which may be identified through
inspections by the Commonwealth Ombudsman. Rather, it would be limited to ongoing and
serious disregard for the obligations in the TIA Act, and an unwillingness to engage with and
respond to issues identified by the Commonwealth Ombudsman.
Subsection 176B(11)
37. Subsection 176B(11) provides that the revocation of a declaration under subsections
(9) or (10) does not affect the validity of an authorisation, made by an authorised officer of
the authority under Division 4 for access to telecommunications data made before the
revocation took effect.
38. This ensures the revocation does not have any retrospective effect. The corrective
services authority may continue to use telecommunications data received under an
authorisation made before the revocation in accordance with the use and disclosure
provisions in Division 6 of Part 4-1 of Chapter 4.
Subsection 176B(12)
39. Subsection 176B(12) provides that a declaration under subsection (3) comes into
force at the start of the day after the day the declaration is registered; or at the start of such
later day as is specified in the declaration.
40. This is consistent with section 12 of the Legislation Act 2003.
Subsection 176B(13)
41. Subsection 176B(13) defines a number of terms used in section 176B.
42. Commonwealth Minister means the Minister.
43. In accordance with the Acts Interpretation Act 1901/ this means the Minister, or any
of the Ministers, administering the provision on the relevant day, in relation to the relevant
matter (which on introduction is the Minister for Home Affairs).
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44. The term 'Commonwealth Minister' is used to differentiate the Commonwealth
Minister making the declarations from the State/Territory Ministers requesting the
declarations be made.
45. State/Territory authority is defined to mean:
• a department of a State or Australian Capital Territory; or
• a part of a department of a State or Australian Capital Territory; or
• an authority or body established for a public purpose by or under a law of a State or
the Australian Capital Territory.
46. The reference to the Australian Capital Territory is required as the Northern Territory,
but not the Australian Capital Territory, is included in the definition of 'State' in
subsection 5(1) of the TIA Act.
47. The inclusion of both 'part of a department' and 'authority or body' is designed to
account for the various ways in which a State or Territory may set up its corrective services
authority. For example, in some States and Territories, the corrective services authority may
be a specified administrative unit within a department, but not a standalone body.
48. State/Territory Minister for a corrective services authority means the Minister of a
State or the Australian Capital Territory who is responsible for corrective services in the State
or the Australian Capital Territory, as the case requires.
49. As with the definition of 'State/Territory authority' the explicit reference to the
Australian Capital Territory is required as the Northern Territory, but not the Australian
Capital Territory, is included in the definition of 'State' in subsection 5(1) of the TIA Act.
Subsection 176B(14)
50. Subsection 176B(14) provides that the definition of authority in subsection 5(1) of the
TIA Act does not apply to this section.
51. The definition of authority in subsection 5(1) does not include Australian Capital
Territory departments and authorities and bodies. Therefore, this definition cannot be used
when defining 'State/Territory authority'.
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