TELECOMMUNICATIONS (INTERCEPTION) BILL

Second Reading

Adjourned debate on second reading.

(Continued from 3 May 2012.)

Mrs REDMOND (Heysen—Leader of the Opposition) (16:38): I indicate that I am the lead speaker on this Telecommunications (Interception) Bill which, as has been mentioned, is really consequential to the ICAC Bill that we have just passed. Our ICAC bill that I introduced some years ago anticipated the need for covert surveillance. Indeed, I think I mentioned in my second reading speech the fact that the now famous Wollongong council investigation had covert surveillance going on for some 18 months and so we recognise the need for the covert surveillance and the need for the Telecommunications (Interception and Access) Act to be complied with.

I thought I would briefly run through it for the sake of having it on the record and for the comfort of those people who may be concerned about the fact that an ICAC will have these powers so that we understand specifically what goes on. It works in this way. The specific legislation is under commonwealth control—that is, the Telecommunications (Interception and Access) Act 1979. I have not printed out the whole thing because it is 257 pages long. It is a very comprehensive act. It starts from the proposition that it is unlawful to intercept communication passing over a telecommunications system. That is the fundamental position of the law: it is unlawful to tap someone's phone.

Then the act sets out circumstances that are exempted from that act in the sense that they are allowed to do the phone taps and so on. There are certain things which are obviously exempt—the installation and maintenance, where it is authorised for network protection of a computer network to identify or trace a person who has contravened a provision of the criminal code and so on, or if it is authorised under the act by the minister.

Under section 34 of the commonwealth act, the commonwealth minister may, at the request of a premier of a state, declare an eligible authority of that state to be an agency under the commonwealth act, and that will then entitle them to make application for warrants and all that sort of thing. That is where the provision comes in. I know that we have to get this legislation passed, but we cannot, in fact, begin to operate under it until we have made an application—and it has to be the Premier, under this act, who makes the application—to the commonwealth to get the authority of the federal minister to be an agency under the act.

The federal minister can make that declaration only if he is satisfied as to these things. First, that the chief officer of the agency and, in this case, it is the ICAC. The bill deals for us with SAPOL and ICAC, but that is because we already had these powers in place for SAPOL and it is just being updated as far as they are concerned—we are bringing it into the modern usage. They have the powers already, so I will just talk about the ICAC aspect of it.

The chief officer of the agency (that is, the ICAC commissioner) has to promise and agree to comply with sections 80 and 81, which have to do with having to keep documents regarding the issue of the warrants and other records regarding interceptions. The chief officer (in our case, the ICAC commissioner) has to give the relevant state minister (the Attorney-General) a written report within three months of any warrant as to the use made of the warrant and the communication of such information to persons other than officers of the authority. There has to be a report in fairly short order from the commissioner to the Attorney-General about any warrants that are issued and what has been done with them.

In addition to that, there also has to be an annual report to the minister, and then a copy of that report (that is, the report for the state minister by the ICAC commissioner) has to then be passed to the federal minister. There is also a requirement to keep the records in a safe place, to destroy them forthwith if they are not to be used for a permitted purpose. There are requirements requiring regular inspections by a separate independent authority of those records to ensure that there has been compliance with that provision and to ensure that persons exercising authority regarding the granting of a warrant cannot be the same persons as those who are inspecting those records.

Finally, there has to be an agreement that the state will require the state authority that inspects the records to also report to the Attorney-General, including reporting contraventions, and a copy of all of that has to go to the federal minister. There is a far bit of detail in all of the reporting mechanisms to seek to ensure and then inspect the assurance that there will not be misuse of telephone taps and other communications that are intercepted.

The act then sets out the mechanics of how an application for a warrant to intercept communications is to be made. I will quickly refer to the relevant section of the documents, and I think it is in section 39. An agency can apply for a warrant, but it has to be an eligible agency and they have to apply to an eligible judge or a nominated Administrative Appeals Tribunal (AAT) member, and often the nominated member, I suspect, is going to be the judge who constitutes an Administrative Appeals Tribunal.

In the case of a police force of a state, an officer of the police force could be an eligible person. That could be someone who makes an application on behalf of the agency—in that case, SAPOL obviously. Section 39 goes on to say:

...in the case of the Independent Commissioner Against Corruption, an officer of that commission;...

But when you read on, it becomes obvious that they are talking about the Independent Commission Against Corruption, and they actually mean the New South Wales one, because that is the only one that has that name. When you read on further, they also refer to other people, such as in the case of the Crime and Misconduct Commission, a person from there and, in the case of the Corruption and Crime Commission, a person from there. Clearly we need to get ourselves as the South Australian Independent Commission Against Corruption inserted into the provisions of that part of the legislation, and that means an amendment, I think, to the federal legislation as well as the application that needs to be made.

There are then, obviously, further provisions allowing for urgent or telephone applications and there are also provisions allowing for the revocation of warrants. If a warrant was issued and it was decided by whoever had issued it that it had been issued inappropriately or they came to the view that it was being misused, they could revoke the warrant. Those sorts of things are fairly standard—the form and content of the applications and the fact that you need to have an affidavit. That is a pretty straightforward form but an affidavit goes with it setting out the basis upon which you say it is warranted.

I am going through these things, as I said, to comfort those who may be concerned about their misuse because there is provision in this legislation regarding unlawful interception of communications or misuse of lawful interception of communications. Basically the act sets out that you can take one of two paths: you can take a civil action yourself, or, if there is a criminal action brought against someone for breach of their obligations under the act and they are convicted, then you can ask a court to provide you with a remedy, and that could be injunctive relief, it could be a monetary amount, but interestingly it could also be punitive damages.

There is provision that, if there is a misuse and someone is aggrieved by a misuse of the interception, then there could be punitive damages ordered in. For those who are not familiar with the term, punitive damages are awarded by a court. Basically it comes from the same word as 'punish'. There are excessively high damages, usually to punish the perpetrator of the wrong, who is being made to pay.

The bill now before us is to allow two agencies—as I said, South Australia Police and the ICAC—to be declared as agencies under the commonwealth act and thus authorised to apply for warrants under that act. The first point to note is that the authorisation to undertake covert surveillance is not just at large but is specific to individual applications for warrants and subject to all checks and balances which I have detailed and which are set out in the commonwealth legislation.

As a consequence, our state bill is only seven clauses long. It is quite a simple bill and it is largely concerned with ensuring that it states the necessary obligations that the commonwealth act requires it to address. The obligations, for instance, of the chief officer relating to records (which are the ones required by sections 80 and 81 of the commonwealth act) are imposed by clauses 3 and 4 of the bill within the state parliament that is before us now.

The bill details the requirements for inspecting the records. That must be done by the review agency. In the case of South Australia Police, the review agency is under our bill called the Police Ombudsman but that is, in fact, a renaming of the Police Complaints Authority. There will therefore be consequential matters, but the Police Complaints Authority becomes the Police Ombudsman and that becomes the agency that can actually inspect the records regarding covert surveillance in this state, and that is as per the requirement of the commonwealth legislation.

In the case of the ICAC, no-one has been appointed yet but the idea is that an independent person will be appointed by the Governor to do that inspection. Obviously it must be done in the time frame. I have one question, Attorney, on this bill as it comes before us. The bill seems to provide that, in terms of that reporting structure, if there has been noncompliance in the course of the reporting, it says that the person reporting may include details of the noncompliance, and I question why it is only 'may'.

I do not understand why it would not be 'must' include details of the noncompliance, given the seriousness—and I take telephone intercepts very seriously. If you are going to allow telephone intercepts—and I am not suggesting that this does not comply with the federal act—if the person who is going to review the interceptions finds that there has been noncompliance, it seems to me that it would make more sense to say if that person finds noncompliance they must report it.

Certainly, there is then an obligation that they must hand on their report. The report has to go further on. If they decide to include the noncompliance, then they have to notify the chief person of the agency (in our case, the commissioner) of their intention to include a note about the noncompliance and they have to allow the commissioner to then respond to that and include the commissioner's response in the document that goes forward by way of report. What I do not understand is: if there is noncompliance, why would you not make it obligatory to report it?

I can anticipate that the Attorney might say, 'It might be something really just technical and non important,' but it would seem to me to be better to say, 'Okay, you still have to report it and you can say in your report, "I consider this to be technical and not important",' rather than simply leaving it in the discretion of that person if we want openness and accountability. I do not want to go into committee, obviously, on this bill but the Attorney may care to respond to that in his response to my comments. I was puzzled by that and would like a response on that.

The powers of the review agency, which are set out in clause 5, allow for that review agency to enter premises at a reasonable time, gain full and free access to records at a reasonable time, make copies of documents and take extracts of documents, and, indeed, require the handover of information in an officer's possession or to which an officer has access. They can also require an officer to give information in writing and they can require an officer to attend to answer questions. Indeed, it then goes on to provide that a person (that is, an officer of the Independent Commission Against Corruption) is not excused from answering a question or giving access to a document on the ground that it would contravene a law, on the ground that it would be contrary to public interest, or on the ground that it might tend to incriminate them or make them liable to a penalty.

So, clearly, there is a fairly comprehensive power of coercion resting with this review authority which, on the one hand, will give comfort to many people to know that the review authority can compel officers not to do anything. There is a penalty of up to $5,000 and up to one year imprisonment if an officer fails or refuses without reasonable excuse to comply with the requirement that is imposed by the review authority in relation to these records, and so on. Indeed, there is a similar penalty for hindering or giving false or misleading information.

One other thing the Attorney might comment on is the definition of 'hindering', which I would take to be broad enough to include if an officer, for instance, deleted records, or something like that, before actually being asked to provide them. I can see some difficulties with enforcement in some circumstances but I will trust that the people who are working at the ICAC will actually be good people who are well-intentioned.

Possibly more important is the penalty in this legislation for misusing information that has been obtained. This is the information obtained under a telephone tap or some other lawful interception but, if someone gets that information—an officer of the ICAC, for instance—and misuses it, then the penalty for that is up to $10,000, in monetary penalty, and imprisonment for two years. I do have a bit of a question about that, too, because, for an individual, that is a significant penalty.

I do not know whether anyone else has been watching the Leveson inquiry in the UK—I am sure some of you have. The whole origin of that inquiry has been that certain newspapers, which have lots and lots of money, have been paying off people to access information that they should not lawfully, I assume, have had access to. I have not looked at the British legislation, but I assume that they would not lawfully have had access to the telephone-intercepted information that they obtained, but they did get it.

It seems to me that the problem, potentially, with a penalty of $10,000 and up to two years' imprisonment may well be that, if someone is offered $100,000 or even more, and you lose 10 per cent of it by way of the penalty, then it is not much of a disincentive. However, what if you cannot get to an individual but it is a corporate thing? I suspect that it might be a good idea to at least think about putting into our legislation some heavier penalty, which we have in other cases. A lot of our environmental law, for instance, says, 'If you are an individual, this is the maximum penalty. If you are a corporation, then a lot more than that is the maximum penalty.'

I would suggest to the minister that he might consider putting a similar provision in here, simply because I can see that there could be some difficulty. I am not proposing to move an amendment and I do not propose that I am the font of all wisdom on this, but I do highlight the Leveson inquiry at the moment and the fact that people can be tempted. I would think there is a relatively outside chance of actual imprisonment for this type of offence, but the fact is that there might not be enough of a disincentive, given the money that could be around, if people are minded to illegally use information that they have obtained.

I think I have just about concluded my comments on this particular bill. As I said, my main aim was to make sure that people understood that we were not just giving this ICAC unlimited powers to go around tapping people's phones without need. This bill in this state has to comply with the federal legislation, which has a lot of checks and balances. Once a warrant is given, there are checks and balances post the issue of the warrant. I would suggest that we have probably put in place a fair number of safeguards against the misuse of telephone intercepts and other sorts of electronic communication intercepts. I conclude my remarks with those comments.

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Business Services and Consumers) (16:57): I thank the Leader of the Opposition for her remarks in relation to this matter. There are a couple of things I should probably mention here in this context. Firstly, the process that the Leader of the Opposition referred to whereby the Premier writes to the commonwealth Attorney and so forth is in train, and we have been laying the groundwork for that for some considerable period of time now. I think that is well in train, so that is good.

Secondly, I take on board the remarks that were made about particular sections. In particular, there was the use of the word 'may' in clause 5(2). I understand the point that is being made. To my way of thinking, unless it is terribly burdensome, one can understand why 'must' would be a reasonable word. I think the position I am in presently is this: I am advised that these state pieces of legislation, which are complementary to the federal legislation, are by and large almost a template, so there is a certain consistency amongst them. The extent to which we depart from that might invite some issues with the commonwealth.

However, I undertake that I will have a look at the matters that have been raised. I have a note of that: clause 5(2) with the word 'may' and clause 5(11) with reference to the word 'hinder'. Again, I think that is okay. I do understand the point made about clause 5(13), which is the penalties, but I do not think it is useful for me to say anything more. I am confident that, if the bill passes in this form, the commonwealth will think it is okay. So, if the bill passes in this form and the commonwealth thinks it is okay, we have a functional capacity ready for the ICAC. My inclination is to leave it as it is but I note the comments made by the leader.

I am about to finish because I do not want to take up anyone's time any further on this, but I would like to say to the Leader of the Opposition that it is refreshing to deal in this chamber with issues of substance relating to legislation from my portfolio. It has been a source of frustration, I think, that we do not have the engagement in this chamber that might help to resolve things more quickly. For better or for worse the Hon. Stephen Wade does not join us here but—

Mrs Redmond interjecting:

The Hon. J.R. RAU: Yes. Aside from the fact that she is always cruel to me, that is okay. The thing is that she does not normally have anything to offer us in terms of amendments here so I want to put on the record that it is refreshing from my point of view that the Leader of the Opposition is here and she is putting particular amendments on the record. That means I now have an opportunity between the houses to talk with her and others from her party who have raised concrete matters and, in her case, put them down in words. That gives us an opportunity to do some useful work between the houses.

I would encourage the leader to speak to the Hon. Mr Wade to encourage him to allow this to occur more often. Then we would have less carry-on elsewhere because we could do a lot more work here and get a lot more mutual understanding of what we are trying to achieve. Anyway, I do genuinely appreciate the leader's contribution today. It has been very helpful and I do not think either of us wishes to go into committee or anything else. I think we will go straight through with this, so that concludes my remarks.

Bill read a second time.

Third Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Business Services and Consumers) (17:02): I move:

That this bill be now read a third time.

Bill read a third time and passed.

At 17:04 the house adjourned until Thursday 31 May 2012 at 10:30.