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

Crimes Legislation Amendment (Telecommunications Interception and Other Measures) Act 2005 No. 95, 2005 An Act to extend the circumstances in which communications can be intercepted without warrant, and for other purposes Contents 1 Short title 2 Commencement 3 Schedule(s) Schedule 1—Amendment of the Criminal Code Act 1995 Schedule 2—Amendment of the Telecommunications (Interception) Act 1979 Part 1—Emergency services Part 2—Interception by radiocommunications inspectors Part 3—Ancillary offences Part 4—Civil forfeiture proceedings and named person warrants Part 5—Employees of carriers Crimes Legislation Amendment (Telecommunications Interception and Other Measures) Act 2005 No. 95, 2005 An Act to extend the circumstances in which communications can be intercepted without warrant, and for other purposes [Assented to 6 July 2005] The Parliament of Australia enacts: 1 Short title This Act may be cited as the Crimes Legislation Amendment (Telecommunications Interception and Other Measures) Act 2005. 2 Commencement (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms. Commencement information Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details 1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table The day on which this Act receives the Royal Assent. 6 July 2005 2. Schedule 1 1 March 2005. 1 March 2005 3. Schedule 2, items 1 and 2 A single day to be fixed by Proclamation. 17 December 2005 (see F2005L04095) However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period. 4. Schedule 2, item 3 The day on which this Act receives the Royal Assent. 6 July 2005 However, if section 6 of the Australian Communications and Media Authority Act 2005 has not commenced before the day on which this Act receives the Royal Assent, the provision(s) do not commence at all. 5. Schedule 2, item 4 The day on which this Act receives the Royal Assent. Does not commence However, if section 6 of the Australian Communications and Media Authority Act 2005 commences before this Act receives the Royal Assent, the provision(s) do not commence at all. 6. Schedule 2, item 5 Immediately after the commencement of section 6 of the Australian Communications and Media Authority Act 2005. Does not commence However, if section 6 of the Australian Communications and Media Authority Act 2005 commences before this Act receives the Royal Assent, the provision(s) do not commence at all. 7. Schedule 2, item 8 The day on which this Act receives the Royal Assent. 6 July 2005 8. Schedule 2, item 9 A single day to be fixed by Proclamation. 17 December 2005 (see F2005L04095) However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period. 9. Schedule 2, items 10 to 14A The day on which this Act receives the Royal Assent. 6 July 2005 10. Schedule 2, item 15 1 June 1980. 1 June 1980 Note: This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent. (2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act. 3 Schedule(s) Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms. Schedule 1—Amendment of the Criminal Code Act 1995 1 Section 473.1 of the Criminal Code (at the end of the definition of law enforcement officer) Add: (g) a member of the New South Wales Crime Commission or a member of the staff of that Commission; (h) an officer of the Independent Commission Against Corruption of New South Wales, being a person who is an officer as defined by the Independent Commission Against Corruption Act 1988 of New South Wales; (i) the Commissioner of the Police Integrity Commission of New South Wales, an Assistant Commissioner of that Commission or a member of the staff of that Commission; (j) an officer of the Corruption and Crime Commission of Western Australia within the meaning of the Corruption and Crime Commission Act 2003 of Western Australia; (k) an authorised commission officer of the Crime and Misconduct Commission of Queensland within the meaning of the Crime and Misconduct Act 2001 of Queensland. Schedule 2—Amendment of the Telecommunications (Interception) Act 1979 Part 1—Emergency services 1 Subsections 6(2A) and (2B) Repeal the subsections, substitute: Communications to or from emergency service facilities (2A) In this section, emergency service facility means premises that are declared by the Minister, by written instrument, to be an emergency service facility. (2B) The Minister may declare premises to be an emergency service facility if the Minister is satisfied that the premises are operated by: (a) a police force or service of the Commonwealth, of a State or of the Australian Capital Territory; or (b) a fire service of a State or of the Australian Capital Territory; or (c) an ambulance service of a State or of the Australian Capital Territory; or (d) a service for despatching, or referring matters for the attention of, a force or service referred to in paragraph (a), (b) or (c); to enable that force or service, or another force or service, to deal with a request for assistance in an emergency. (2C) A declaration by the Minister under subsection (2B) is not a legislative instrument for the purposes of the Legislative Instruments Act 2003. (2D) If the Minister makes a declaration under subsection (2B), the Minister must, by legislative instrument, specify: (a) the name of the force or service operating the premises to which the declaration relates; and (b) the geographical region in which those premises are located. (2E) If a House of the Parliament disallows, in accordance with section 42 of the Legislative Instruments Act 2003, a legislative instrument made under subsection (2D), the declaration to which the instrument relates is taken to have been revoked at the time of the disallowance. (2F) If a person who is lawfully engaged in duties relating to the receiving and handling of communications to or from an emergency service facility listens to or records a communication passing over a telecommunications system to or from the emergency service facility, the listening or recording does not, for the purposes of this Act, constitute an interception of the communication. (2G) Subsection (2F) only applies in relation to an emergency service facility if signs notifying persons that communications to or from the facility may be listened to or recorded are clearly visible at each entrance to the facility. 2 After paragraph 103(ac) Insert: (ad) for each State and for the Australian Capital Territory, the number and type of emergency service facilities located in that State or Territory that have been declared by the Minister during the year to which the report relates; and Part 2—Interception by radiocommunications inspectors 3 Before subsection 6(3) Insert: (2H) If: (a) an inspector under section 267 of the Radiocommunications Act 1992 is lawfully engaged in performing spectrum management functions of the Australian Communications and Media Authority under the Australian Communications and Media Authority Act 2005 or the Radiocommunications Act 1992; and (b) while performing those spectrum management functions, the inspector incidentally listens to or records a communication passing over a telecommunications system; the listening or recording does not, for the purposes of this Act, constitute an interception of the communication. 4 Before subsection 6(3) Insert: (2H) If: (a) an inspector under section 267 of the Radiocommunications Act 1992 is lawfully engaged in performing spectrum management functions of the Australian Communications Authority under the Australian Communications Authority Act 1997 or the Radiocommunications Act 1992; and (b) while performing those spectrum management functions, the inspector incidentally listens to or records a communication passing over a telecommunications system; the listening or recording does not, for the purposes of this Act, constitute an interception of the communication. 5 Subsection 6(2H) Omit "the Australian Communications Authority under the Australian Communications Authority Act 1997", substitute "the Australian Communications and Media Authority under the Australian Communications and Media Authority Act 2005". Part 3—Ancillary offences 8 Subsection 5(1) (after paragraph (d) of the definition of class 1 offence) Insert: or (e) an offence constituted by receiving or assisting a person who is, to the offender's knowledge, guilty of an offence of a kind referred to in paragraph (a), (b), (c), (ca) or (cb), in order to enable the person to escape punishment or to dispose of the proceeds of the offence; Part 4—Civil forfeiture proceedings and named person warrants 9 Paragraph 6K(c) Repeal the paragraph, substitute: (c) 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. 10 After subsection 84(1) Insert: (1A) The Ombudsman must include in each report under subsection (1) in relation to a financial year: (a) a summary of the inspections conducted in the financial year under section 83; and (b) particulars of any deficiencies identified that impact on the integrity of the telecommunications interception regime established by this Act; and (c) particulars of the remedial action (if any) taken or proposed to be taken to address those deficiencies. Note: In complying with this section, the Ombudsman remains bound by the obligations imposed by section 63 relating to disclosure of intercepted information or designated warrant information. 11 At the end of paragraphs 100(1)(a), (b), (c), (d) and (e) Add "and". 12 After paragraph 100(1)(e) Insert: (ea) in relation to the applications of a kind referred to in paragraph (a), (b), (c), (d) or (e), the relevant statistics about applications of that kind that relate to named person warrants; and (eb) in relation to all named person warrants issued during that year on application made by each agency or authority: (i) how many of those warrants involved the interception of a single telecommunications service; and (ii) how many of those warrants involved the interception of between 2 and 5 telecommunications services; and (iii) how many of those warrants involved the interception of between 6 and 10 telecommunications services; and (iv) how many of those warrants involved the interception of more than 10 telecommunications services; and (ec) in relation to all named person warrants issued during that year on application made by each agency or authority, the total number of telecommunication services intercepted under those warrants; and 13 At the end of paragraphs 100(2)(a), (b), (c), (d) and (e) Add "and". 14 After paragraph 100(2)(e) Insert: (ea) in relation to the applications of a kind referred to in paragraph (a), (b), (c), (d) or (e), the relevant statistics about applications of that kind that relate to named person warrants; and (eb) in relation to all named person warrants issued during that year: (i) how many of those warrants involved the interception of a single telecommunications service; and (ii) how many of those warrants involved the interception of between 2 and 5 telecommunications services; and (iii) how many of those warrants involved the interception of between 6 and 10 telecommunications services; and (iv) how many of those warrants involved the interception of more than 10 telecommunications services; and (ec) in relation to all named person warrants issued during that year, the total number of telecommunication services intercepted under those warrants; and 14A Before paragraph 103(b) Insert: (ae) a summary of the information: (i) that is required under subsection 84(1A) to be included by the Ombudsman in the report made under subsection 84(1); and (ii) that relates to the year to which the Minister's report relates; and Part 5—Employees of carriers 15 After subsection 5(4) Insert: (4A) A reference in this Act to an employee of a carrier includes a reference to a person who is engaged by the carrier or whose services are made available to the carrier. [Minister's second reading speech made in— Senate on 16 March 2005 House of Representatives on 23 June 2005] (38/05)