EXPLANATORY STATEMENT

Select Legislative Instrument 2005 No. 302

Issued by the authority of the Attorney-General

Crimes Legislation Amendment (Telecommunications Interception and Other Measures) Act 2005

Telecommunications (Interception) Act 1979

Telecommunications (Interception) Amendment Regulations 2005 (No 1)

Proclamation of Crimes Legislation Amendment (Telecommunications Interception and Other Measures) Act 2005

The Crimes Legislation Amendment (Telecommunications Interception and Other Measures) Act 2005 (Amending Act) amended the Telecommunications (Interception) Act 1979 (the Act) to insert a new paragraph 6K(c) which provides the power to prescribe by regulation such Commonwealth, State or Territory forfeiture legislation required to be included in the interception regime for the purposes of defining ‘proceeding’ under paragraph 5B(b) of the Act.

Items 3 and 8 of the table at subsection 2(1) of the Amending Act provides that sections 1, 2 and 9 of Schedule 2 to that Amending Act commence on a day to be fixed by Proclamation.  If any of these provisions do not commence within a period of six months from the day the Act receives the Royal Assent, they will commence on the first day after the end of that period.  The Act received the Royal Assent on 6 July 2005.

The purpose of the proposed Proclamation is to fix 17 December 2005 as the day on which items 1, 2 and 9 of Schedule 2 of the Amending Act commence. This date has been chosen so that the Telecommunications (Interception) Amendment Regulations 2005 (No. 1) will take effect on the same day.

Telecommunications (Interception) Amendment Regulations 2005

Section 108 of the Act provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing all 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 Amending Act removes the list of Acts previously contained in paragraph 6K(c) of the Act and provides the power to prescribe by regulation such Commonwealth, State or Territory Acts as are necessary. 

Upon commencement, new paragraph 6K(c) of the Act will provide that a proceeding by way of an application for a restraining order, or an order that is ancillary to a restraining order, under a prescribed Act of the Commonwealth, a State or the Australian Capital Territory is a proceeding within the meaning of ‘proceedings for the confiscation or forfeiture or for pecuniary penalty’ for the purposes of paragraph 5B(b) of the Act.  This means that lawfully obtained information under the Act may be used in aid of civil and criminal forfeiture proceedings.

The purpose of the Regulations is to amend the Telecommunications (Interception) Regulations 1987 (the Principal Regulations) to prescribe the forfeiture legislation for the purposes of paragraph 6K(c) of the Act. By prescribing the listed forfeiture legislation, the Principal Regulations would ensure that lawfully obtained information may be used in civil and criminal forfeiture regimes.  The amendment reflects the recent shift in most jurisdictions towards civil forfeiture regimes in addition to forfeiture following a criminal conviction.

As these regulations are required in order the prescribe the relevant State and Territory forfeiture legislation, as well as Commonwealth legislation, the Government consulted with the States and Territories to confirm which specific forfeiture legislation needed to be prescribed.

These amendments implement recommendation 7 of the Report of the Review of Named Person Warrants and Other Matters completed by Mr Tom Sherman AO in 2003.

The Regulations will commence on the commencement of item 9 of Schedule 2 of the Amending Act. 

Details of the Regulations are as follows:

Regulation 1 names the Regulations.

Regulation 2 provides that the Regulations commence on 17 December 2005 which is the commencement of item 9 of Schedule 2 to the Amending Act.

Regulation 3 states that the Regulations amend the Principal Regulations.

Schedule 1, Item 1 substitutes the current Regulation 2A to provide the meaning of prescribed Act for the purposes of paragraph 6K(c) of the Act.  Existing regulation 2A is no longer required as the Amending Act repealed subsections 6(2A) and 6(2B) of the Act under which regulation 2A operated.

Schedule 1, Item 2 inserts the list of prescribed Commonwealth, State and Territory forfeiture legislation for the purposes of paragraph 6K(c) of the Act.