Bills Digest no. 143 2011–12

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WARNING: This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Margaret Harrison-Smith
Law and Bills Digest Section
30 May 2012

Contents
Purpose
Background
Financial implications
Key provisions

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Date introduced:  22 March 2012

House:  House of Representatives
Portfolio:  Attorney-General’s

Commencement:  Sections 1 to 3 of the Act commence on Royal Assent.  Items in the four schedules to the Act commence in accordance with the commencement table in section 2 of the Act.[1]

The commencement of the schedules depends variously on: the commencement of section 16 of the Victorian Independent Broad-based Anti-corruption Amendment (Investigative Functions) Act 2012 (IBAC Amendment Act (Vic))[2], which is to repeal the Victorian Police Integrity Act 2008 (PI Act (Vic)) [3]; receipt of Royal Assent by the IBAC Amendment Act (Vic); the commencement of Schedule 1 to the Cybercrime Legislation Amendment Act 2012 [4]; the commencement of Part 7 of the Victorian Public Interest Monitor Act 2011 (PIM Act (Vic)[5]; and commencement of the South Australian Independent Commissioner Against Corruption Act 2012.[6]

Links: The links to the Bill, its Explanatory Memoranda and second reading speech can be found on the Bill's home page, or through http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation. When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website at http://www.comlaw.gov.au/.

Purpose

The Telecommunications Interception and Other Legislation Amendment (State Bodies) Bill 2012 (the Bill) amends the Telecommunications (Interception and Access) Act 1979 (TIA Act[7]) and three other Commonwealth Acts[8] to remove references to the Victorian Office of Police Integrity (OPI), which is to be abolished by the IBAC Amendment Act (Vic). 

The Bill replaces references to OPI with references to two new Victorian agencies, the Independent Broad-based Anti-corruption Commission (IBAC), to be established under the IBAC Act (Vic)[9], and the Victorian Inspectorate (VI), to be established under the Victorian Inspectorate Act 2011 (VI Act (Vic)).[10] 

The Bill also proposes amendments to the TIA Act to enable relevant information under the TIA Act to be provided to the Victorian Public Interest Monitor (PIM), to be established under the PIM Act (Vic), and to allow the PIM to appear at applications by the IBAC for interception warrants under the TIA Act.

Since the introduction of the Bill, a proposed Government amendment to the Bill has been circulated which would also include the South Australian Independent Commissioner Against Corruption (ICAC) within the TIA Act’s definitions of ‘eligible authority’ and ‘enforcement agency’.[11] Legislation to establish the ICAC is currently before the South Australian Parliament.

Background

The Victorian OPI

The Victorian OPI is an anti-corruption and oversight organisation for Victoria Police.[12] Established under the PI Act (Vic), the OPI is presently defined as an ‘eligible authority’ under the TIA Act.  This enables the OPI to receive, use and disclose existing information relevant to its functions, that has been intercepted under the TIA Act by other interception agencies.

As an ‘eligible authority’, the OPI may also be declared under section 34 of the TIA Act to be an ‘agency’ for the purposes of the TIA Act.[13] This means that the OPI can, in some circumstances, apply for a warrant to intercept a person’s private communications.

The making of a declaration under section 34 is subject to the Attorney-General being satisfied that relevant state legislation satisfies the requirements of subsection 35(1) of the TIA Act, by setting out minimum record keeping requirements, and establishing an independent oversight regime.

Additionally, subsection 35(2) requires that the Attorney-General not make a declaration under section 34 unless he or she is satisfied that the relevant state has entered into an agreement to pay all expenses connected with the issue of warrants to its agencies.

The OPI is also included in the definition of ‘enforcement agency’ under subsection 5(1) of the TIA Act.  This means that it can access stored communications[14], and authorise the disclosure of telecommunications data in accordance with sections 178, 179 and 180 of the TIA Act.

Proposed abolition of OPI

Following a report by the Victorian Ombudsman, who found that ‘[t]here appear[ed] to be a considerable gap in oversight arrangements in relation to the use of telecommunication interception powers’ used by Victoria Police and the OPI[15], the Victorian Parliament passed legislation to establish three new agencies and, amongst other measures, to abolish the OPI.[16]

 
The Victorian Independent Broad-based Anti-corruption Commission

The IBAC Act (Vic) establishes the Victorian Independent Broad-based Anti-corruption Commission (IBAC).[17]  It also establishes the position of IBAC Commissioner and the educational and corruption prevention functions of the IBAC. As well, it sets up a Joint House Committee to oversee the IBAC.[18] The IBAC will assume responsibility, currently resting with the OPI, for overseeing the Victoria Police. 

The IBAC ‘will also be responsible for investigating, exposing and suppressing corruption involving or affecting all public officials in Victoria’.[19] These powers are conferred on the IBAC by the IBAC Amendment Act (Vic).[20]

The IBAC Amendment Act will repeal the PI Act, thereby abolishing the OPI, and enabling the IBAC to exercise its functions in relation to all Victorian public officials, including Victoria Police. Until this happens, the IBAC and the OPI will co-exist.[21]

 

The Victorian IBAC legislation has been the subject of recent criticism in Victoria by the Law Institute of Victoria, and by Liberty Victoria on the ground that it is too narrow in scope.[22]  It was the subject of criticism on the Australian Broadcasting Commission’s current affairs program, 7.30.[23]

The Victorian Inspectorate

The VI Act (Vic) establishes the Victorian Inspectorate (VI), which is to provide oversight of the IBAC and investigate complaints about IBAC officers.[24]

The Victorian Public Interest Monitor

A further enactment, the Victorian Public Interest Monitor Act 2011 (PIM Act (Vic)), establishes a Public Interest Monitor (PIM).[25]  The PIM will oversee the use of telecommunication interception powers by Victorian law enforcement agencies, including IBAC, under several Acts, including the Telecommunications (Interception) (State Provisions) Act 1998 (Vic).[26]

The South Australian Independent Commissioner Against Corruption

Legislation to establish the South Australian Independent Commissioner Against Corruption (ICAC), the ICAC Bill, was introduced into the South Australian Parliament on 2 May 2012.[27]

 

The South Australian Premier has stated that ‘[o]ne of the ICAC's most significant functions will be education, with a particular focus on government departments and agencies’, and that the ‘functions of the new agency would be to identify and investigate corruption in public administration, and to prevent or minimise corruption, misconduct and maladministration in public administration’.[28]

 

The Premier stated that the ICAC Bill will give South Australia ‘the best anti-corruption framework in the nation’, and that the Bill will balance ‘serious powers with accountability and independence, and forensic investigation with public education’.[29]

Commencement

The commencement dates for the IBAC Amendment Act (Vic) and the PIM Act (Vic) are dependent on the passage of the Commonwealth Bill.  However, the IBAC Act (Vic) and the VI Act (Vic) commence on proclamation, or if not proclaimed before 1 July 2012, are to commence on that day.

The ICAC Act (SA) would commence on a day to be fixed by proclamation.

What the Bill does

TIA Act

The Bill removes references to the OPI from the TIA Act, and includes the IBAC and the VI within the definition of an ‘eligible authority’ under section 5 of that Act, to enable them to receive information under the TIA Act for their respective purposes.   

So that the IBAC can apply for a stored communications warrant and authorise disclosure of telecommunications data, the Bill also includes the IBAC within the definition of an ‘enforcement agency’ in section 5 of the TIA Act.[30]

 

It is also the Government’s intention to declare the IBAC an ‘agency^[31]’ under section 34 of the TIA Act.  As mentioned in connection with the OPI, the Attorney-General can make such a declaration only if satisfied that the requirements of section 35 of the TIA Act (described above) have been met. The anti-corruption agencies of a number of states, including New South Wales, Queensland and Western Australia, have been declared agencies under section 34 of the TIA Act.[32]

The Explanatory Memorandum states that, consistent with the approach taken with respect to other oversight bodies, it is not intended to seek to declare the VI an interception agency.[33]

Until the repeal of the OPI Act (Vic) by section 16 of the IBAC Amendment Act (Vic), the IBAC and the OPI will coexist. The Bill therefore enables the Director of the OPI to communicate information to the IBAC during this period.[34]

The Bill also enables relevant information to be provided to the PIM, and for the PIM to appear at applications under the TIA Act for interception warrants by Victorian interception agencies during this period.

As mentioned above, since its introduction, the Government has circulated proposed amendments to the Bill which would also make the ICAC an ‘eligible authority’ and an ‘enforcement agency’ under the TIA.[35]  The ICAC could also therefore be declared an ‘agency’ if the Attorney-General were satisfied that the requirements of section 35 of the TIA Act were met (see above).

Crimes Act, Privacy Act, TA Act

The OPI can receive information or documents under the Crimes Act 1914 (Crimes Act), and receive information under the Taxation Administration Act 1953 (TA Act). The Bill replaces references to the OPI with references to the IBAC in each of these Acts.

The Bill also amends the Crimes Act and the TA Act to allow the OPI to disclose information, or make available a thing or document, to the IBAC during the period between the commencement of the IBAC Act (Vic) and the repeal of the PI Act (Vic).

The Bill amends the Privacy Act 1988 (Privacy Act) by removing references to the OPI in the definition of ‘enforcement body’ and replacing them with references to the IBAC. An agency so defined is exempt from the use and disclosure provisions, and the access and correction provisions, in the National Privacy Principles in Schedule 3 of that Act.[36]

Human Rights

Having regard to the rights set out in Articles 17 (privacy) and 19 (freedom of expression) of the International Covenant on Civil and Political Rights[37], the Explanatory Memorandum states that the Bill is compatible with human rights, and that to the extent that the Bill may limit human rights, those limitations are ‘reasonably necessary and proportionate’.[38] 

Basis of policy commitment

In her second reading speech, the Attorney-General indicated that the Bill ‘is an important step in ensuring that a State body responsible for detecting, investigating and prosecuting serious criminal activity is able to access investigative tools imperative to support their functions’.[39]

Committee consideration

The Bill has been reviewed by the Senate Standing Committee for the Scrutiny of Bills.  The Committee had no comments on the Bill.[40]

Financial implications

The Explanatory Memorandum states that the amendments made by the Bill will have no financial impact on the Commonwealth, and that the costs associated with the new agencies will be borne by the States of Victoria and South Australia respectively.[41]

Key provisions

Schedule 1—Victorian Independent Broad-based Anti-corruption Commission

Items 1 to 25 of Part 1 of Schedule 1 of the Bill make proposed amendments to provisions of the Crimes Act, the Privacy Act, TA Act and the TIA Act to replace references in those acts to the OPI and its officers with references to the IBAC.[42] 

In particular, item 7 inserts proposed new paragraph (ba) into the definition of ‘eligible authority’ in subsection 5(1) of the TIA Act, to replace the reference to the OPI in existing paragraph (ba) of that definition with a reference to the IBAC.

Item 8 inserts proposed new paragraph(h) into the definition of ‘enforcement agency’ in subsection 5(1) of the TIA Act, to replace the reference to the OPI in existing paragraph (h) of that definition with a reference to the IBAC.

Items 26 to 42 of Part 2 of Schedule 1 of the Bill contain application and transitional provisions, the effects of which are fully outlined in the Explanatory Memorandum.[43]

Schedule 2—Victorian Inspectorate

Items 1 to 14 of Part 1 of Schedule 2 of the Bill make proposed amendments to provisions of the TIA Act by inserting references in a range of provisions to the VI, consequent on the passage of the VI Act (Vic).[44]

In particular, item 2 includes the VI in the definition of ‘eligible authority’ in subsection 5(1) of the TIA Act.

Schedule 3—Public Interest Monitor

Items 1 to 13 of Schedule 3 make proposed amendments to the TIA Act to enable the PIM to be provided with relevant information, and to appear at applications for interception warrants by Victorian interception agencies.[45]

In particular, item 4 inserts proposed section 44A into the TIA Act, which provides that if a Victorian interception agency applies for an interception warrant under section 39 of the TIA Act in respect of a telecommunications service or a person, the PIM may make a submission to the Judge or nominated member of the Administrative Appeals Tribunal (AAT) to whom the application is made.  

In relation to an application by the agency for a warrant in respect of a telecommunications service, the PIM submission is to address the matters mentioned in paragraphs 46(2)(a) to (f) of the TIA Act In relation to an application for a warrant in respect of a person, the submission is to address the matters mentioned in paragraphs 46A(2)(a) to (f) of the TIA Act.

For both sorts of warrant, the matters to be addressed in the PIM submission are: the extent to which interception of information under the warrant would be likely to interfere with the privacy of any person(s); the gravity of the conduct constituting the offence(s) under investigation; how much information obtained through methods other than the issue of a warrant would be likely to assist the agency in the investigation of the offence(s); the extent to which the agency has used other methods in the investigation of the offence(s), or to which those other methods are available to the agency; how much the use of such methods would be likely to assist in the agency’s investigation of the offence(s); and how much the use of such methods would be likely to prejudice the agency’s investigation, whether through delay or for any other reason.

Proposed paragraph 44A(3) provides that for the purposes of making submissions under proposed section 44A, the PIM may question the person making the request on behalf of the agency, or a person who is required by the Judge or the nominated AAT member to provide further information with respect to the application.

Schedule 4 – South Australian Independent Commissioner Against Corruption

Items 1 to 17 of Schedule 4 make proposed amendments to the TIA by inserting references in a range of provisions to the ICAC, in anticipation of the passage of the ICAC Act (SA).

In particular, item 3 includes the ICAC in the definition of ‘eligible authority’ in subsection 5(1) of the TIA Act.

Item 4 includes the ICAC in the definition of ‘enforcement authority’ in subsection 5(1) of the TIA Act.

Members, Senators and Parliamentary staff can obtain further information from the Parliamentary Library on (02) 6277 2500.

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