EXPLANATORY STATEMENT
Issued by the Authority of the Attorney-General
Telecommunications (Interception and Access) Act 1979
Declaration of the Royal Commission into Institutional Responses to Child Sexual Abuse 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. The TIA Act also prohibits access to stored communications that have completed their passage over the telecommunications network where the access occurs without the knowledge of either the sender or recipient of that communication.
There are exceptions to the prohibition on access to telecommunications 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 what purposes information accessed under a 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 eligible Commonwealth authorities, which are defined under the Act as being Commonwealth Royal Commissions to which a declaration under section 5AA of the TIA Act is in force.
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, prescribed offences include offences carrying a maximum penalty of at least three years imprisonment in addition to the serious offences defined in section 5D of that 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.
The purpose of this declaration is to declare the Royal Commission into Institutional Responses to Child Sexual Abuse (‘the Royal Commission’) as an eligible Commonwealth authority under section 5AA of the TIA Act.
Under a Letters Patent dated 11 January 2013, Her Excellency the Governor-General appointed the six-member Royal Commission to investigate institutional responses to child sexual abuse. The Royal Commission is examining how institutions with a responsibility for children have managed and responded to allegations and instances of child sexual abuse, and will make recommendations on how to improve laws, policies and practices to prevent and better respond to child sexual abuse in institutions.
Given its subject matter, the inquiry is likely to consider matters that involve the commission of prescribed offences under the TIA Act. 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 child sexual abuse in institutions. Without the declaration, law enforcement agencies could not refer relevant information to the Royal Commission where that information was obtained under an interception warrant.
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 Institutional Reponses to Child Sexual Abuse 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 that Act.
The purpose of the declaration is to enable 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 Commission’s inquiry.
The Royal Commission intends to serve written notices on Australian law enforcement agencies to seek production of documents and other material relevant to the Royal Commission’s inquiry into child sexual abuse in institutions.
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 to assess and to analyse institutional responses to instances of child sexual abuse and allegations of child sexual abuse.
While the declaration will enable the Royal Commission to use communications already obtained by law enforcement agencies under a warrant, the declaration will not give the Royal Commission the power to intercept communications under the TIA Act.
Human Rights Implications
This declaration will allow the Royal Commission to receive and to use communications held by law enforcement agencies relevant to the Royal Commission’s inquiry into child sexual abuse in institutions. 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 of access to the communications of persons using 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
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 that requires 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 crime. 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
This declaration engages the right to privacy by allowing law enforcement agencies to provide communications lawfully obtained under a warrant to the Royal Commission where that material relates to the Commission’s inquiry of prescribed offences.
The TIA Act strictly regulates the use and communication of information obtained under an interception warrant. The Royal Commission can only use the information it receives 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 use or communicate information received from law enforcement agencies to perform its obligations in relation to the inquiry into child sexual abuse in institutions and reporting on that inquiry.
The Royal Commission’s receipt and use of these communications under the TIA Act will limit a person’s right to protection from arbitrary and unlawful interference with privacy in Article 17 of the ICCPR.
The restrictions upon the use and disclosure of the lawfully intercepted telecommunications in the TIA Act ensures that the limitation on the privacy right in Article 17 is limited to the legitimate purpose of the Royal Commission’s inquiry. The legislative framework in the TIA Act underpinning access to and use of such information in these circumstances is reasonable and proportionate.
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 Royal Commission’s access to lawfully intercepted material is permitted for the legitimate purpose of protecting public order and protecting the rights of others, by ensuring that the Royal Commission has access to material held by law enforcement agencies relating to child sexual abuse in institutions.
Access to communications obtained by law enforcement agencies will assist the
Royal Commission in its inquiry into how Australia may respond to child sexual abuse in institutions and help prevent these crimes occurring in the future.
In the absence of this declaration, there is a risk that the Royal Commission will not receive vital information relevant to its investigation. This would limit the Commission’s ability to conduct its inquiry into how institutions have responded to allegations of child sexual abuse, affecting the Royal Commission’s capacity to recommend policy, legislative, administrative or structural reforms to better protect children against sexual abuse in institutions.
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 to use lawfully intercepted material under the TIA Act may indirectly limit the right to freedom of expression: some persons may be more reluctant to use telecommunications services to seek, receive and impart information if they know 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 by enabling the Royal Commission to investigate child sexual abuse in institutions and to protect the rights of people who have been victims of criminal offences.
This declaration declares the Royal Commission to be an eligible Commonwealth authority under the TIA Act so that the Royal Commission can receive communications lawfully obtained by law enforcement agencies under a warrant. The declaration ensures that the Royal Commission has the legal authority to receive and to use information as relevant to its inquiry.
As discussed above, the legislative framework in the TIA Act ensures that access to these communications is reasonable and proportionate to the limitation on the right to freedom of expression. Any indirect limitation on this right resulting from the Royal Commission’s access to communications is associated with the Royal Commission’s inquiry to further the inquiry’s legitimate aim of protecting public order. These safeguards on the use of communications ensure that this material is only used in circumstances relevant to the Royal Commission’s inquiry meaning that any indirect limitation on the right to freedom of expression in Article 19 is minimised.
Conclusion
The declaration is compatible with human rights as to the extent that it limits any human rights, those impacts are reasonable, necessary and proportionate.
Senator the Hon George Brandis QC
Attorney-General