Steven Ciobo (Moncrieff, Liberal Party, Shadow Minister for Small Business, the Service Economy and Tourism) Share this | Link to this | Hansard source

I rise this morning on behalf of the shadow minister for justice and border protection, the member for Sturt, to talk about the Telecommunications Interception Legislation Amendment Bill 2008. I am pleased to indicate on behalf of the opposition that we will be supporting this legislation. The bill is intended to amend the Telecommunications (Interception and Access) Act 1979 and the Surveillance Devices Act 2004 to ensure that officeholders can validly authorise officers to act on their behalf in performing functions under those acts. The full Federal Court in Hong Kong Bank of Australia Ltd v Australian Securities Commission 1992 held that a provision of the Corporations Law that defined a prescribed person to include a person authorised by the commission to perform certain functions could not be construed so as to confer the power to make the initial authorisation.

The acts to be amended include definitions of ‘certifying officer’, ‘certifying person’ and ‘member of the staff of a Commonwealth royal commission’ who may be authorised to perform functions under the acts. There is some uncertainty as to whether those definitions might fall foul of the rules of construction as propounded in the Hong Kong Bank case. The bill seeks to amend the acts to include specific powers to authorise the relevant persons to perform the defined functions. The bill also makes some technical amendments to maintain the currency of the telecommunications interception and access regime and to support the new Victorian Office of Police Integrity.

This bill seeks to maintain the status quo under the acts as currently understood and to make minor technical amendments. I am therefore able to indicate, as I mentioned, that the opposition will be supporting this legislation. Had I been the principal shadow minister, my remarks would have been much more comprehensive; but I note that the government member is now in the chamber, so I will leave the balance of the remarks to him.

Mark Dreyfus (Isaacs, Australian Labor Party) Share this | Link to this | Hansard source

I rise today to speak in favour of the Telecommunications Interception Legislation Amendment Bill 2008. This bill is a demonstration of the Rudd government’s commitment to the rule of law and accountable government, albeit that, on its face, the legislation is of a fairly technical nature. The bill clarifies the Telecommunications (Interception and Access) Act 1979 and the Surveillance Devices Act 2004 to address what could be described as legal uncertainties arising from the 1992 decision of the Federal Court, which is quite some time ago, in a case called Hong Kong Bank Australia Ltd v Australian Securities Commission.

The uncertainties emanate from definitions that are designed to confer delegation of power on designated officeholders to authorise others to act in a particular way and to carry out certain functions. In that case, the Federal Court, consisting of Justices Lockhart, Gummow and O’Connor, suggested that references to prescribed persons could not be read as conferring power on the relevant authority to make the authorisation that was the subject of that case, which was referred to in the Corporations Law. Instead, Their Honours suggested that there should be an expressed conferral of such power.

This decision has been the subject of consideration in the Attorney-General’s Department and by the Office of Parliamentary Counsel. While there was some thinking that the decision might be able to be distinguished, it was felt that, for the avoidance of doubt, legislation should be introduced to prevent any risk of courts adopting the interpretation that the Federal Court came to for the corporations legislation in respect of the Telecommunications (Interception and Access) Act 1979. As a consequence, this bill will provide certainty for actions that are taken under section 5(1) of the Telecommunications (Interception and Access) Act 1979. The bill, in essence, confirms the authorisation powers by inserting specific powers and treating previous authorisations as if they had been made under those powers. The amendments do not alter or expand the powers of security or law enforcement agencies. Rather, they provide certainty for actions taken under existing provisions.

I should note that in addition to these amendments, which are designed to put beyond doubt the possible uncertainty created by that decision of the Federal Court to which I have referred, the legislation makes a few other technical amendments, including amending the Telecommunications (Interception and Access) Act to refer to a separate Victorian statute, the Police Integrity Act 2008. This is legislation that is presently before the Victorian parliament which seeks to put in place new legislation to regulate the Office of Police Integrity in my home state of Victoria. The Office of Police Integrity was introduced to ensure that the highest ethical and professional standards are maintained within the Victorian police. The Office of Police Integrity detects, investigates and prevents police corruption and serious misconduct. As the Victorian Minister for Police said in his second reading speech in the Victorian parliament in introducing the Police Integrity Bill 2008:

The OPI performs an invaluable service to the Victorian community by seeking to ensure that police officers conduct themselves properly in the performance of their significant duties. The unique powers entrusted to police necessitate appropriate oversight so that the public can have ongoing confidence in the police force.

I am particularly confident in the Office of Police Integrity because of the recently appointed director, former Judge Michael Strong of the County Court of Victoria, who was appointed earlier this year to carry forward the work of the Office of Police Integrity. Notwithstanding the rather technical nature of the amendments that are contained in this bill—which, as I have said, are designed to ensure that the Office of Police Integrity is able to continue to exercise powers and use the provisions of the Telecommunications (Interception and Access) Act—I would like to take this opportunity to express my gratitude and, I am sure, that of all Victorians for the tremendous work that the Office of Police Integrity has done up to this time and will continue to do. This bill, as I have indicated, introduces provisions which will help the Office of Police Integrity continue with the great work that it has done. I commend this bill to the House.

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

in reply—I would like to thank members for their contributions to the debate on the Telecommunications Interception Legislation Amendment Bill 2008. Initially, the member for Moncrieff commented that this bill seeks to maintain the status quo under the Telecommunications (Interception and Access) Act and make minor technical amendments. I can confirm that that is the case and I thank him for his support for the bill. I also note the support of the member for Isaacs for the bill and his very constructive comments in respect of the Victorian Office of Police Integrity.

Essentially the bill is important in maintaining the effectiveness of the legal framework that underpins the lawful interception of telecommunications and surveillance activities. Replicating the existing authorisation powers in stand-alone provisions does not alter or expand any powers for security or law enforcement agencies under the Telecommunications (Interception and Access) Act. The amendments referring to the Victorian Office of Police Integrity will ensure that the office can continue to exercise its existing interception powers following the establishment of the office as a stand-alone agency under the Victorian Police Integrity Act 2008. The bill also removes redundant references to provisions in relation to communications carriers’ reporting obligations that were repealed following the passage of the Telecommunications (Interception) Amendment Act 2006. These technical amendments to the interception regime will improve, clarify and simplify the operation of the Telecommunications (Interception and Access) Act. As such, this bill is a further step in the ongoing modernisation of Australia’s laws for accessing telecommunications information for law enforcement or national security purposes.

Question agreed to.

Bill read a second time.

Ordered that the bill be reported to the House without amendment.