Explanatory Statement
Issued by the Authority of the Attorney-General
Telecommunications (Interception and Access) Act 1979
Telecommunications (Interception and Access – Law Enforcement Conduct Commission of New South Wales) Declaration 2017
Under the Telecommunications (Interception and Access) Act 1979 (the TIA Act), the power to intercept telecommunications under a warrant for the purposes of law enforcement is confined to the
Australian Federal Police, the Australian Criminal Intelligence Commission (referred to as the Australian Crime Commission in the TIA Act), the Australian Commission for Law Enforcement Integrity or to an ‘eligible authority’ of a State or the Northern Territory in relation to which a declaration under subsection 34(1) of the TIA Act is in force.
The Attorney-General has discretion to declare an eligible authority of a State to be an agency for the purposes of the TIA Act. The eligible authority concerned may then apply for and execute telecommunications interception warrants.
A declaration may only be made where the law of the relevant State makes satisfactory provision in relation to the preconditions set out in subsection 35(1) of the TIA Act. The relevant State must also enter into an agreement relating to costs arising from the issue of warrants to the relevant eligible authority.
The Telecommunications (Interception and Access) (New South Wales) Act 1987 makes provisions that comply with the requirements of subsection 35(1) of the TIA Act. The State of New South Wales has also entered into an agreement with the Commonwealth undertaking to pay the costs connected with the issue of warrants to the Law Enforcement Conduct Commission (LECC).
Under section 37 of the TIA Act a declaration of an eligible authority as an agency which is in force under section 34 may be revoked if requested by the Premier of a State. Pursuant to such a request, this instrument also revokes the ‘Declaration of eligible authority as agency — Police Integrity Commission’.
The instrument commences on the later of the day Item 4, Division 1, Part 2 of Schedule 1 of the Law Enforcement Legislation Amendment (State Bodies and Other Measures) Act 2016 commences and the start of the day this declaration is registered. Item 4 amends the definition of ‘eligible authority’ in the TIA Act to include the LECC and exclude the PIC and comes into effect on the day section 51 of the Law Enforcement Conduct Commission Act 2016 (NSW) commences.
The 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. The TIA Act prohibits the interception of communications without lawful authority. The purpose of the instrument is to ensure that the LECC is authorised to apply for warrants to intercept communications.
Human rights implications
The human rights engaged by the instrument are those set out in Article 17 of the International Covenant on Civil and Political Rights (ICCPR).
Article 17 - privacy
Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, or to unlawful attacks on his honour or reputation, and that everyone has the right to the protection of the law against such interference or attacks. This instrument will limit the right to privacy under Article 17. However, the right to privacy under the ICCPR is not an absolute right. The right can be limited if the limitation is not incompatible with the right itself and the limitation is authorised by law, is for a legitimate objective and is reasonable, necessary and proportionate to that objective.
Agency eligible to apply for interception warrants
The instrument makes the LECC eligible to apply for warrants to intercept a person’s private communications in certain circumstances. However, such interception will not be unlawful as it will be authorised by law under the TIA Act.
Interception by the LECC will not be arbitrary within the meaning of Article 17. Interception of telecommunications may only occur subject to a warrant issued by an issuing authority, namely an eligible judge or a nominated member of the Administrative Appeals Tribunal. Before an issuing authority may issue a warrant they must be satisfied that interception is appropriate in the circumstances. In coming to this conclusion the issuing authority must consider several factors, including the privacy impacts of the interception, the gravity of the offence, the likely usefulness of interception information to the relevant investigation and the extent to which other methods of investigating the offence have been used or are available. The instrument will serve the legitimate objective of the investigation and prosecution of serious crime and corruption and is reasonable, necessary and proportionate to achieving this end.
Other State integrity agencies have interception powers under the TIA Act and the purpose of the instrument is to ensure the LECC has access to the same powers and is subject to the same obligations. Interception will only be available to the LECC in relation to the investigation of serious offences, which generally includes offences punishable by imprisonment for life or for a period or a maximum period of at least seven years.
Use of information
The TIA Act strictly regulates the use and communication of information obtained by law enforcement agencies under interception warrants. Any information collected by the LECC may only be used for defined purposes and purposes connected with the investigation of serious offences. The TIA Act also imposes a number of recordkeeping and accountability requirements, including a requirement for the LECC to record particulars of, and report information about, the use and communication of intercepted information. Communications are destroyed where the chief officer of the agency is satisfied that the record is no longer required for a purpose permitted by the legislation.
Persons affected by an interception warrant have relevant judicial avenues through which to challenge the validity of the interception and the use of any intercepted communications. They also have the right to access communications being used as evidence against them during prosecution.
The instrument does not affect rights to a fair trial and fair hearing, the presumption of innocence and minimum guarantees in criminal proceedings, or existing legislation relating to procedural fairness.
Record-keeping and reporting
The LECC will be subject to stringent recordkeeping and reporting obligations. Subsection 35(1) of the TIA Act requires the relevant State to make satisfactory provision for these obligations prior to the instrument being made. These requirements include requiring regular inspection of records to ensure compliance with the Act and regular reporting to the responsible Minister. Agencies must also report annually to the Attorney-General on the effectiveness of warrants.
Conclusion
The instrument is compatible with human rights because it advances the protection of human rights, and to the extent that it limits human rights, those limitations are authorised by law, reasonable, necessary and proportionate.