Robert McClelland (Barton, Australian Labor Party, Attorney-General) Share this | Link to this | Hansard source

I move:

That this bill be now read a second time.

The main purpose of this bill is to amend the Telecommunications (Interception and Access) Act 1979 (the TIA Act) and Surveillance Devices Act 2004 (the Surveillance Devices Act) to ensure officeholders can validly authorise others to act on their behalf in performing certain legislative functions.

The bill also implements several technical amendments.

This bill does not alter or expand any powers of security or law enforcement agencies in relation to telecommunications interception, stored communications, access to data, or surveillance devices.

Both the Telecommunications Interception Act and the Surveillance Devices Act contain several definitions that are intended to confer power on designated office holders to authorise others to act on their behalf.

For example, in relation to the Australian Federal Police, the term ‘certifying officer’ in subsection 5(1) of the Telecommunications Interception Act includes the Commissioner and a Deputy Commissioner of Police. The term also includes a senior executive AFP employee who is a member of the AFP and who is authorised in writing by the Commissioner of Police.

Reference to an officer being authorised in writing also appears in the terms ‘certifying person’ and ‘member of the staff of a Commonwealth Royal Commission’ in subsection 5(1) of the Telecommunications Interception Act and the definitions ‘appropriate authorising officer’ and ‘law enforcement officer’ in subsection 6(1) of the Surveillance Devices Act.

In the Hong Kong Bank case Hong Kong Bank of Australia Ltd v Australian Securities Commission (1992) 108 ALR 70, the Full Federal Court considered that a similarly worded provision in the Corporations Law could not be read as providing the source of power for the relevant authority to make the authorisation referred to in the provision. Rather, some other source of power, such as an express authorisation making power, was needed.

While the relevant definitions in the TIA Act and the Surveillance Devices Act can be distinguished from the section examined in the Hong Kong Bank case, there is some risk a court could find that the affected provisions do not, in themselves, confer power to make an authorisation but merely provide a definition. This could mean that actions taken by a purportedly authorised person are invalid.

Such an outcome would undermine the effective operation of the acts and could expose persons who believed they were acting in accordance with the legislation to legal challenge.

The bill addresses this issue by inserting express authorisation powers in order to establish a clear and separate legislative basis for office holders to make authorisations and also for authorised persons to perform the functions associated with their designated role.

The bill also ensures the validity of actions taken by authorised persons under the existing provisions by inserting new sections that treat persons authorised to act under the current provisions as if they had been authorised under the act as amended by this bill. These provisions will ensure that all authorisations whether past or present are made on a consistent legislative basis.

The bill does not expand interception and surveillance powers available to agencies, nor does it increase the range of office holders who are authorised to undertake certain functions under the TIA Act or the Surveillance Devices Act.

The bill also includes several technical amendments to the TIA Act that will improve the effective operation of the act by updating references in the act to the Victorian Office of Police Integrity and correcting drafting errors. Again, these amendments do not expand the powers of law enforcement or security agencies.

The Victorian government is in the process of establishing the Office of Police Integrity as a stand-alone authority under new legislation. In order to preserve the capacity of the office to exercise its powers under the TIA Act once the new Victorian act is proclaimed, this bill will substitute references to the current act with the details of the new legislation.

The bill also corrects two drafting errors.

The first is to substitute an incorrect reference to the term ‘certifying person’ with the correct term, ‘certifying officer’.

The second removes a reference to several sections of the TIA Act that were repealed in the 2006 amendment act.

These technical amendments will ensure that the TIA Act is clear and relevant in the obligations and powers it confers on telecommunications carriers and law enforcement agencies.

In conclusion, this bill will ensure that the legislative framework for obtaining telecommunications and surveillance based information necessary for law enforcement and national security purposes is relevant, clear and effective.

I commend the bill to the House.

Debate (on motion by Mr Farmer) adjourned.