EXPLANATORY STATEMENT
Issued by the Authority of the Attorney-General
Telecommunications (Interception and Access) Act 1979
Declaration of the Royal Commission into Trade Union Governance and Corruption as an eligible Commonwealth authority
The Telecommunications (Interception and Access) Act 1979 (‘the TIA Act’) prohibits the interception of communications that are passing over the Australian telecommunications network.
There are exceptions to the prohibition on interception under the TIA Act where law enforcement agencies are able to obtain warrants to assist in the investigation of defined offences under the Act. The TIA Act further governs how telecommunications obtained under a warrant must be dealt with, and prescribes the purposes for which information accessed under warrant may be used.
The TIA Act contains provisions that allow certain law enforcement and national security bodies to receive and to use intercepted telecommunications material obtained lawfully by other agencies under a warrant where the material relates to their investigation. These bodies include any eligible Commonwealth authority, which is defined under the Act as being Commonwealth Royal Commissions to which a declaration under section 5AA of the TIA Act is in force.
The purpose of this declaration is to declare the Royal Commission into Trade Union Governance and Corruption (‘the Royal Commission’) as an eligible Commonwealth authority under section 5AA of the TIA Act.
Section 5AA of the TIA Act provides that the Attorney-General may declare a Commonwealth Royal Commission to be an eligible Commonwealth authority by notice in the Gazette if satisfied that the Royal Commission is likely to inquire into matters that may involve the commission of a prescribed offence.
Under the TIA Act, a prescribed offence includes an offence carrying a maximum penalty of at least three years imprisonment in addition to a serious offence under section 5D of the Act (generally offences with an imprisonment threshold of at least seven years). Ancillary offences to these offences (such as aiding and abetting, or being involved in, these offences) also fall within this definition.
Under Letters Patent dated 13 March 2014, Her Excellency the Governor-General appointed the Royal Commission to investigate trade union governance and corruption. The Royal Commission is examining the governance arrangements of employee associations (trade unions) and whether any relevant entities are used, or have been used, for any unlawful purpose.
The Royal Commission is likely to inquire into matters that may involve the commission of a prescribed offence for the purposes of the TIA Act. These may include, for example, serious fraud or other offences carrying a penalty of at least three years’ imprisonment.
The declaration will enable the Royal Commission to receive communications lawfully obtained under the TIA Act from law enforcement agencies where those telecommunications are relevant to the Royal Commission’s inquiry into trade union governance and corruption. Without the declaration, law enforcement agencies could not refer relevant information to the Royal Commission where that information was obtained under a warrant under the TIA Act.
The Attorney-General’s Department has consulted with the Royal Commission in relation to the making of this Declaration.
The accompanying declaration is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
This legislative instrument 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 Legislative Instrument
The declaration of the Royal Commission into Trade Union Governance and Corruption as an eligible Commonwealth authority under the provisions of the Telecommunications (Interception and Access) Act 1979 (‘the TIA Act’) is made by the Attorney-General under section 5AA of the Act.
The purpose of the declaration is to permit the Royal Commission to receive and to use information lawfully obtained under the TIA Act by law enforcement agencies where the information is relevant to the Royal Commission’s inquiry. The Royal Commission will not be an interception agency under the TIA Act and will therefore not have the capacity to undertake its own interception operations under the TIA Act.
The Royal Commission intends to serve written notices upon Australian law enforcement agencies to seek production of documents and other material relevant to the Royal Commission’s inquiry into trade union governance and corruption. These law enforcement agencies may currently hold lawfully intercepted telecommunications information which is relevant to the Royal Commission’s inquiry.
Due to the investigative nature of the Royal Commission, access to communications obtained under the TIA Act by law enforcement agencies may be crucial for the Royal Commission’s inquiry into trade union governance and corruption.
Human Rights Implications
This declaration will allow the Royal Commission to access the private telecommunications of individuals held by law enforcement agencies for the purposes of the Royal Commission’s inquiry into trade union governance and corruption. In doing so, the declaration engages the following human rights:
- Protection against arbitrary or unlawful interference with privacy – Article 17 of the International Covenant on Civil and Political Rights (ICCPR); and
- Protection of the right to freedom of expression – Article 19 of the ICCPR.
Protection against arbitrary or unlawful interferences with privacy
Article 17 of the ICCPR protects against arbitrary or unlawful interference with a person’s privacy, family, home or correspondence. The TIA Act promotes the protection of a person’s privacy from arbitrary or unlawful interferences via the prohibition on access to the private telecommunications of users of the Australian telecommunications network.
The right in Article 17 may be subject to permissible limitations, provided that they are authorised by law and not arbitrary. In order for an interference with the right to privacy to be permissible, the interference must be authorised by law, be for a reason consistent with the provisions, aims and objectives of the ICCPR and be reasonable in the particular circumstances. The United Nations Human Rights Committee has interpreted ‘reasonableness’ in this context to imply that any interference with privacy must be proportional to the end sought and be necessary in the circumstances of any given case.
Obtaining communications under the TIA Act
This declaration engages the right to privacy by allowing law enforcement agencies to provide communications lawfully obtained under a TIA Act warrant to the Royal Commission where that material relates to the Commission’s inquiry.
The TIA Act permissibly limits the right in Article 17 of the ICCPR. The TIA Act establishes a process of independent judicial authorisation for access to the private communications of users of the telecommunications system by requiring enforcement agencies to obtain a warrant from a nominated Judge or Administrative Appeals Tribunal Member (‘issuing authorities’) to access the content of these communications. The authorisation process requires issuing authorities to consider the need for access to this information on a case-by-case basis in accordance with a prescriptive legal framework.
This framework provides that warrants may only be issued under the TIA Act when likely to assist in connection with the investigation by a law enforcement agency of a serious offence. Issuing authorities must also consider the extent to which methods of investigating the offence that do not involve obtaining communications have been used by or are available to the agency. Furthermore, this framework also requires issuing authorities to consider how much the privacy of any person or persons would be likely to be interfered with if a warrant is issued.
Agency use of the powers under the TIA Act is subject to independent review by Commonwealth and State oversight agencies to ensure that the powers have been used lawfully. This legislative framework has been subject to public scrutiny and debate in Parliament.
Use of information obtained
The Royal Commission’s receipt and use of communications lawfully obtained under the TIA Act will limit a person’s right to protection from arbitrary and unlawful interference with privacy under Article 17 of the ICCPR.
To the extent that the measures in the declaration limit the right to privacy under Article 17 of the ICCPR, they are lawful and non-arbitrary. The legislative framework in the TIA Act underpinning access to and use of such information in these circumstances is reasonable and proportionate.
The TIA Act strictly regulates the purposes for which information obtained under an interception warrant can be used. The Royal Commission can only use the information it receives as an ‘eligible Commonwealth authority’ under the TIA Act in a manner consistent with the limited use and disclosure provisions set out in the Act.
Under subsections 67(2) and 139(1) of the TIA Act, the Royal Commission can only use or disclose information received from law enforcement agencies for the limited permitted purposes (defined in section 5) of an investigation that the Royal Commission is conducting in the course of the inquiry it is commissioned to undertake, or a report on such an investigation.
The right to freedom of expression
Article 19 of the ICCPR provides that all persons shall have the right to freedom of expression. This right includes the freedom to seek, receive and impart information and ideas of all kinds, through any media of a person’s choice. Article 19(3) provides that such rights may be subject to restrictions for specified purposes provided in the right, including the protection of national security or public order where such restrictions are provided by law and are necessary.
This declaration engages the right to freedom of expression in Article 19, as enabling the Royal Commission to receive and use lawfully intercepted material under the TIA Act may indirectly limit the right to freedom of expression in that some persons may be more reluctant to use telecommunications services to seek, receive and impart information if they thought that their communications may be subject to lawful access.
To the extent that the measures in this declaration have the effect of limiting the right to freedom of expression, the limitation is designed for the legitimate objective of protecting public order. The Royal Commission is declared as an eligible Commonwealth authority because of its inquiry into matters that may involve the commission of offences such as serious fraud and corruption by trade unions.
The TIA Act’s safeguards ensure that the Royal Commission’s is only able to receive and use lawfully intercepted information in a manner consistent with the limited use and disclosure provisions set out in the Act
This ensures that any indirect limitation on the right to freedom of expression in Article 19 is minimised.
Conclusion
The declaration is compatible with human rights. To the extent that it limits any human rights, those impacts are reasonable, necessary and proportionate.
Senator the Hon George Brandis QC
Attorney-General