Commonwealth Numbered Regulations - Explanatory Statements

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TELECOMMUNICATIONS AMENDMENT REGULATIONS 2004 (NO. 1) 2004 NO. 59

Subsection 594(1) of the Telecommunications Act 1997 (the Act) provides that the Governor-General may make regulations, prescribing matters required or permitted by the Act to be prescribed; or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

The purpose of the accompanying Regulations is to permit telecommunications carriers and carriage service providers to disclose information or documents to the Western Australian Corruption and Crime Commission (the CCC). The accompanying Regulations amend the Telecommunications Regulations 2001 (the Principal Regulations) to provide that the CCC is a 'prescribed authority' for the purposes of paragraph (g) of the definition of 'criminal law-enforcement agency' in subsection 282(10) of the Act.

Part 13 of the Act provides that telecommunications carriers, carriage service providers and certain other persons must protect the confidentiality of information or documents that relate to:

(a)       the contents of communications that have been, or are being, carried by carriers or carriage service providers;

(b)       carriage services supplied by carriers and carriage service providers; and

(c)       the affairs or personal particulars of other persons.

The primary disclosure/use offences are set out in sections 276, 277 and 278 of the Act.

The disclosure or use of such information or documents is authorised in limited circumstances. Subsections 282(3) to (5) permit the disclosure or use of information or a document in circumstances in which an authorised officer of a 'criminal law-enforcement agency' has certified that the disclosure is necessary for the enforcement of the criminal law, a law imposing a pecuniary penalty or for the protection of the public revenue. Subsection 282(10) of the Act lists certain bodies that are criminal law-enforcement agencies, and paragraph 282(10)(g) provides that they may include 'a prescribed authority established by or under a law of the Commonwealth, a State or a Territory'. The Principal Regulations prescribe a number of such authorities.

Telecommunications carriers and carriage service providers are already permitted to disclose information or documents to a number of criminal law-enforcement agencies, including the Australian Federal Police, the Australian Crime Commission and the New South Wales Crime Commission (paragraphs (a), (c) and (d) of the definition of 'criminal law-enforcement agency' in subsection 282(10) of the Act) and the Western Australian Anti-Corruption Commission (paragraph 5.1(c) of the Principal Regulations).

The CCC was established by the Corruption and Crime Commission Act 2003 (WA) on 1 January 2004. The CCC was established as a result of the recommendation in the interim report of the Royal Commission Into Whether There Has Been Any Corrupt or Criminal Conduct by Western Australian Police Officers (the Royal Commission), being conducted by Royal Commissioner Geoffrey Kennedy AO QC, that the Western Australian Anti-Corruption Commission be replaced with a new permanent body responsible for the external oversight of Western Australian public officers (including police officers).

The CCC can receive and assess matters referred to it from the Royal Commission and can continue the investigation of such matters. In addition, the Anti-Corruption Commission may refer an allegation to the CCC; and the CCC has the power to direct the Anti-Corruption Commission to refer a matter to it. The Anti-Corruption Commission will be abolished, and its assets and liabilities transferred to the CCC, when the Corruption and Crime Commissioner has certified that the functions of the Anti-Corruption Commission are substantially exhausted and each staff member of the Anti-Corruption Commission has become a member of staff of the CCC, resigned, been terminated or otherwise placed in the Western Australian public sector.

In addition to its functions relating to the Royal Commission and the Anti-Corruption Commission, the CCC's functions are to combat and reduce the incidence of organised crime and to continuously improve the integrity of, and to reduce the incidence of misconduct in, the Western Australian public service. Parts 6 and 7 of the Corruption and Crime Commission Act 2003 give the CCC powers to:

•       require a public authority or a public officer to produce a statement of information;

•       obtain documents or other things from any person; and

•       summon witnesses to attend before the Commission for an examination and/or to produce any record or thing described in the summons.

The accompanying Regulations enable the CCC to obtain information or documents (for example, information about subscribers of a particular carriage service or call charge records) from a telecommunications carrier or carriage service provider where an authorised officer of the CCC has certified that the disclosure is reasonably necessary for the enforcement of the criminal law, a law imposing a pecuniary penalty or for the protection of public revenue.

Details of the accompanying Regulations appear in the Attachment.

The accompanying Regulations commence upon gazettal.

ATTACHMENT

DETAILS OF THE TELECOMMUNICATIONS AMENDMENT REGULATIONS 2004 (NO. 1)

Regulation 1 - Name of Regulations

Regulation 1 provides that the name of the accompanying Regulations is the Telecommunications Amendment Regulations 2004 (No. 1).

Regulation 2 - Commencement

Regulation 2 provides that the accompanying Regulations commence on their publication in the Commonwealth of Australia Gazette.

Regulation 3 - Amendment of the Telecommunications Regulations 2001

Regulation 3 provides that Schedule 1 to the accompanying Regulations amends the Telecommunications Regulations 2001.

Schedule 1         Amendments

Item 1 - Paragraph 5.1(c)

Item 1 makes a minor drafting change to paragraph 5.1(c) to accommodate the amendment in item 2.

Item 2 - After paragraph 5.1(c)

Item 2 inserts new paragraph 5.1 (d) after paragraph 5.1(c) in the Principal Regulations. Paragraph 5.1(d) provides that the Corruption and Crime Commission, established by section 6 of the Corruption and Crime Commission Act 2003 of Western Australia, is a 'prescribed authority' for the purposes of paragraph (g) of the definition of 'criminal law-enforcement agency' in subsection 282(10) of the Act.