Queensland Parliamentary Library

‘ Tapping’ Powers for Queensland Enforcement Agencies: the Telecommunications (Interception) Queensland Bill 2003 (Qld)

The Telecommunications (Interception) Queensland Bill 2003 (Qld) was introduced into the Queensland Parliament as a Private Member’s Bill by Mr L Springborg MP, Leader of the Opposition, on 9 October 2003. The objective of the Bill is to establish a recording, reporting and inspection regime to complement the Telecommunications (Interception) Act 1979 (Cth). It will give the Queensland Police Service and the and Misconduct Commission power to intercept communications between offenders over telecommunications systems as a tool for the investigation of particular serious offences, such as drug trafficking, prescribed under the Commonwealth Act.

Nicolee Dixon Research Brief No 2003/35

Queensland Parliamentary Library Research Publications and Resources Section Ms Karen Sampford, Director (07) 3406 7116 Ms Nicolee Dixon, Senior Parliamentary Research Officer (07) 3406 7409 Ms Renee Giskes, Parliamentary Research Officer (07) 3406 7241

© Queensland Parliamentary Library, 2003

ISSN 1443-7902 ISBN 0 7345 2882 5 NOVEMBER 2003

Copyright protects this publication. Except for purposes permitted by the Copyright Act 1968, reproduction by whatever means is prohibited, other than by Members of the Queensland Parliament in the course of their official duties, without the prior written permission of the Clerk of the Parliament on behalf of the Parliament of Queensland.

Inquiries should be addressed to: Director, Research Publications & Resources Queensland Parliamentary Library Parliament House George Street, Brisbane QLD 4000 Ms Karen Sampford. (Tel: 07 3406 7116) Email: [email protected]

Information about Research Publications can be found on the at: http://www.parliament.qld.gov.au/Parlib/Publications/publications.htm

CONTENTS

1 INTRODUCTION...... 1

2 CURRENT POSITION IN QUEENSLAND ...... 2

3 POWER TO INTERCEPT TELECOMMUNICATIONS: THE TELECOMMUNICATIONS (INTERCEPTION) ACT 1979 (CTH) ...... 4

3.1 ELIGIBLE STATE AGENCIES ...... 5

3.2 APPLICATION FOR WARRANT ...... 7

3.3 RELEVANT OFFENCES UPON WHICH APPLICATION FOR WARRANT MADE ....8

3.4 ISSUE OF WARRANTS ...... 9

3.5 DEALING WITH INTERCEPTED INFORMATION...... 10

3.6 REPORTS ABOUT INTERCEPTIONS ...... 11

3.7 ACCOUNTABILITY PROVISIONS...... 12

3.8 CIVIL REMEDIES ...... 13

3.9 AGENCY COMMENTS IN 2002 ANNUAL REPORT ...... 13

4 POSSIBLE BENEFITS AND CONCERNS...... 13

5 HISTORY OF QUEENSLAND DEVELOPMENTS...... 15

5.1 CRIMINAL JUSTICE COMMISSION TELECOMMUNICATIONS INTERCEPTION REPORT – 1995 ...... 15

5.2 TELECOMMUNICATIONS (INTERCEPTION) QUEENSLAND BILL 1998 ...... 17

5.1 PROJECT KRYSTAL – A STRATEGIC ASSESSMENT OF ORGANISED CRIME IN QUEENSLAND ...... 17

5.2 PARLIAMENTARY CRIMINAL JUSTICE COMMITTEE REPORT...... 18

5.3 RECENT DEVELOPMENTS...... 20

6 TELECOMMUNICATIONS (INTERCEPTION) QUEENSLAND BILL 2003 (QLD) ...... 20

RECENT QPL RESEARCH PUBLICATIONS 2003 ...... 25

Telecommunications (interception) Queensland Bill 2003 (Qld) Page 1

1 INTRODUCTION

The Telecommunications (Interception) Queensland Bill 2003 (Qld) was introduced into the Queensland Parliament as a Private Member’s Bill by Mr L Springborg MP, Leader of the Opposition, on 9 October 2003. The objective of the Bill is to establish a recording, reporting and inspection regime to complement the Telecommunications (Interception) Act 1979 (Cth) to give the Queensland Police Service (QPS) and the Crime and Misconduct Commission (CMC) power to intercept communications between offenders over telecommunications systems as a tool for the investigation of particular serious offences, such as drug trafficking, prescribed under the Commonwealth Act.1

The Bill seeks to bring Queensland into line with other States, all of which have passed legislation to give their law enforcement agencies interception powers. Under the Telecommunications (Interception) Act, only eligible State authorities (being the QPS and the CMC in the case of Queensland) that have been declared to be agencies for the purposes of that Act can apply for an interception warrant. In order for the Commonwealth Attorney-General to make that declaration, the relevant State must have legislation complying with the reporting, record keeping, destruction, and inspection preconditions set out in the Telecommunications (Interception) Act. The Bill provides measures to satisfy those requirements.

At present, Queensland law enforcement bodies must rely on the Australian Federal Police (AFP) or the Australian Crime Commission (ACC) for access to intercepted communications that those bodies have intercepted under the Telecommunications (Interception) Act 1979. This will usually occur only where the Queensland agencies are involved in joint operations with a body having interception power (such as the ACC or AFP) or the offence is within the jurisdiction of those bodies. Many offences and criminal activities, however, are State-based and fall outside the jurisdiction of the ACC or AFP. State-based bribery and corruption have been a matter of frustration for Queensland law enforcement agencies.2

1 Mr L Springborg MP, Leader of the Opposition, Telecommunications (Interception) Queensland Bill 2003 (Qld), Second Reading Speech, Queensland Parliamentary Debates, 9 October 2003, p 3886.

2 Queensland. Legislative Assembly, Parliamentary Criminal Justice Committee, A Report on the Introduction of the Telecommunications Interception Power in Queensland – balancing investigative powers with safeguards, Report No 50, December 1999, p 8, referring to by Mr B Butler, then Chair of the CJC, given at the PCJC hearing.

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The Bill reflects recommendations made in June 1999 by the QPS and the Queensland Crime Commission in the Public Information Paper, Project KRYSTAL – A Strategic Assessment of Organised Crime in Queensland.3

2 CURRENT POSITION IN QUEENSLAND

It has been noted that the telephone plays an important part in the communication of information. Criminals too use the telephone to plan . While criminals are alert to the possible presence of listening devices and have means of finding or combating them, law enforcement bodies have found that even when people believe that their telephone conversations are being intercepted, they will still use the telephone. In any event, other parties unaware of the interception will still make calls to those persons.4 It is likely that even with the increasing range of new technologies, the telephone will still remain an important means of communication.

Unlike most law enforcement powers, which are within the province of State legislative capacity, interception of telecommunications has become dominated by the Commonwealth. The Telecommunications (Interception) Act 1979 (Commonwealth Act) represents the exercise of the constitutional power conferred on the Commonwealth Parliament by s 51(v) of the Commonwealth Constitution to make with respect to ‘postal, telegraphic, telephonic and other like services’. The Commonwealth Act prohibits, except where authorised, interception of communications passing over a telecommunications system without the knowledge of the person making the communication. A number of safeguards and controls apply. At least as far as the telephone system is concerned, the High Court has held that the Commonwealth Act was intended to express completely the law governing the interception of communications passing over that system, thus preventing State legislation from covering the same field.5 For State police or a law enforcement agency to intercept telecommunications, the Commonwealth Act requires that the relevant State has complementary legislation that complies with requirements in the Commonwealth Act. Queensland is the only State not to have such legislation.

3 Telecommunications (Interception) Queensland Bill 2003 (Qld), Explanatory Notes, p 2.

4 Criminal Justice Commission (CJC), Telecommunications Interception and Criminal Investigations in Queensland: A Report, January 1995, p 30, citing supporting material from previous inquiries and reviews eg Stewart Report of the Royal Commission into Alleged Telephone Interceptions, (Commissioner Stewart), 1986, pp 341-342.

5 Miller v Miller (1978)141 CLR 269. Section 109 of the Commonwealth Constitution invalidates State laws to the extent of inconsistency with a Commonwealth law. Telecommunications (interception) Queensland Bill 2003 (Qld) Page 3

Given the supremacy of the Commonwealth in the telecommunications interception area, States have tended to concentrate their legislative efforts on regulating the use of devices, such as listening devices, to monitor activities not passing over telecommunications systems. Under the Invasion of Act 1971 (Qld), a ‘listening device’ is defined as ‘any instrument, apparatus, equipment or device capable of being used to overhear, record, monitor or listen to a private conversation simultaneously with its taking place’. It is an offence to use a listening device to do those things unless exceptions apply: s 43. One exception is that it will not be an offence for a police officer or another person to use a listening device under a provision of an Act authorising the use of a listening device.

The Police Powers and Responsibilities Act 2000 (Qld) (PPR Act) allows a police officer to use a surveillance device (including either, or a combination of, a listening device, visual surveillance device (eg a camera); and a tracking device) to investigate indictable offences under the authority of a warrant issued by the Supreme Court. This legislation also created the Public Interest Monitor who appears in applications for warrants as the representative of the public interest; the legislation enables the Public Interest Monitor to access agency records about the warrant.6

Similar powers are available under the Crime and Misconduct Act 2001 to enable authorised crime commission officers of the CMC to investigate misconduct (listening device) or major crime (same range of devices as under the PPR Act but also includes a data surveillance device for computers7). Under both this Act and the PPR Act, the issue of warrants by the Court is constrained by considerations relating to the intrusive nature of such devices and the viability of alternative methods of investigation. There are safeguards built in such as the involvement of the Public Interest Monitor and, for the CMC, general oversight by the Parliamentary Crime and Misconduct Committee (PCMC).8

Telecommunications interception is directed at communications over a telecommunications system and, for reasons explained later, may be a more effective investigative tool than a device such as a listening device. The interception can occur at a remote location. It can pick up both sides of a telephone conversation, or facsimile communications, or emails using a computer modem, all

6 PCJC Report No 50, p 4.

7 A difficulty with Internet and email communications is that they operate through telephone lines and therefore are within the domain of the Commonwealth Act. Any surveillance permitted under State laws may have to occur at a point before or after passing over the telecommunications system (eg on the hard drive of the sender or receiver). However, there is no case on point.

8 See also Commissions of Inquiry Act 1950, s 19C.

Page 4 Queensland Parliamentary Library in ‘real’ time. The limitations of listening devices are that they usually need to be physically installed and removed at a particular place, possibly on a number of occasions, thereby making them an intrusive tool and possibly endangering the officer concerned. They can also only pick up one end of a telephone conversation.

3 POWER TO INTERCEPT TELECOMMUNICATIONS: THE TELECOMMUNICATIONS (INTERCEPTION) ACT 1979 (CTH)

The long title of the Commonwealth Act is an Act to prohibit the interception of telecommunications except in accordance with its provisions. The Act sets out the circumstances in which interception of communications will be lawful.9

‘Telecommunications’ is defined in s 5 of the Commonwealth Act to mean communications by means of guided or unguided electromagnetic energy or both. A ‘telecommunications service’ is a service for carrying such communications, the use of which enables communications to be carried over a telecommunications system operated by a carrier but is not a service for carrying communications solely by means of radiocommunication. It will therefore include mobile , facsimile transmissions, modem transmissions and email. So while telecommunications interception conjures up the idea of ‘’, it is broader than this.

Pursuant to s 7, a person shall not intercept etc. a communication passing over a telecommunications system. However, this does not apply in relation to a number of situations then set out in sub-s 7(2)-(5) which will allow telecommunications interception to take place.

Previous legislation (the Telephonic Communications (Interception) Act 1960) allowed only very limited interception of telephone communications by the then Post-Master for technical reasons and by the Australian Security Intelligence Organisation (ASIO) under a warrant for national security reasons. For the first time, the 1979 Act extended the power to the AFP to investigate narcotic offences under the Customs Act 1901.

The Commonwealth Act now allows telecommunications interception to occur –

• where the interception results from, or is incidental to, action taken by an officer of ASIO for specified purposes. Part III of the Commonwealth Act concerns applications by ASIO for a warrant to intercept communications that could assist in carrying out national security intelligence functions. This Brief will not focus on interception by ASIO;

9 See Commonwealth Attorney-General, Telecommunications (Interception) Act 1979 Report for the Year Ending 30 June 2002, p 2. Telecommunications (interception) Queensland Bill 2003 (Qld) Page 5

• by an AFP officer or State police officer in certain situations of urgency involving potential loss of life or serious personal injury. A warrant must be applied for as soon as practicable;

• where the interception of a communication occurs under a warrant. Part VI enables the AFP, ACC, and ‘eligible’ State law enforcement agencies to apply for a warrant to investigate certain prescribed serious offences. This is the focus of the discussion in this Brief.

3.1 ELIGIBLE STATE AGENCIES

In 1987, the Commonwealth Act was amended to enable the National Crime Authority (now superseded by the ACC) and State law enforcement agencies to intercept telephone communications in certain circumstances and to extend the range of offences for which warrants could be obtained. This move followed recommendations of the 1981 Australian Royal Commission of Inquiry Into Drugs, headed by the Hon Mr Justice E S Williams, and the 1983 Royal Commission into Drug Trafficking, headed by the Hon Mr Justice D G Stewart.10

Part VI of the Commonwealth Act enables applications for warrants to be made by the AFP, the ACC, and State law enforcement agencies that are ‘eligible authorities’. In the Queensland context, the QPS and the CMC are each an ‘eligible authority’. However, just being an eligible authority is not enough to enable either the QPS or CMC to apply for a warrant. The Commonwealth Attorney-General must have first declared the eligible authority to be an agency and may do so only if the preconditions under the Commonwealth Act are met. These are –

• the Premier of a State must request the Attorney-General to make the declaration; and

• the State Government must have passed complementary legislation complying with the requirements in s 35 of the Commonwealth Act regarding record keeping, destruction, reporting, and oversight and inspection. It is this precondition that the Queensland Telecommunications (Interception) Queensland Bill 2003 seeks to satisfy. The way in which the Bill seeks to comply with s 35 is dealt with in the context of the discussion of the Bill, below.

10 See also the 1986 Stewart Royal Commission Into Alleged Telephone Interceptions Report.

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A declaration must not be made unless the Attorney-General is satisfied that the State has entered into an agreement to pay all the expenses connected with the issue of warrants and meet the AFP’s expenses concerning their execution.

The State Premier can also ask the Attorney-General to revoke a declaration. In addition, the declaration can be revoked if, and only if, the Attorney-General is satisfied of any of the matters in s 37(2). These are things such as the State law no longer being satisfactory; compliance of the agency no longer being satisfactory; or there are difficulties concerning the agreement about expenses relating to the issue and execution of warrants.

At present, no Queensland body has been declared to be an agency under the Commonwealth Act. New South Wales, South Australia, and Victoria have had legislation to allow telecommunications interception for many years with Western Australia, Tasmania and the Northern Territory recently joining in. The declarations are set out below –11

Victoria Police 28 October 1988

NSW Crime Commission 30 January 1989

NSW Police Service 30 January 1989

Independent Commission Against 6 June 1990 Corruption

South Australia Police 10 July 1991

Western Australia Police Service 15 July 1997

Police Integrity Commission (NSW) 14 July 1998

Western Australian Anti-Corruption 24 September 2001 Commission

Eligible authorities not the subject of a declaration must rely on being given access to intercepted information which has been obtained by other agencies with power to obtain a warrant. In Queensland, it is sometimes possible, if a law enforcement agency believes that interception is needed for proper investigation of a serious offence, to seek assistance from other law enforcement bodies such as the AFP or ACC. For example, information might be intercepted under a warrant obtained by a Commonwealth agency that indicates the commission of a Queensland offence but the QPS has not been declared an agency for the purposes of the

11 Telecommunications (Interception) Act 1979 Report for the Year Ending 30 June 2002, p 4. Telecommunications (interception) Queensland Bill 2003 (Qld) Page 7

Commonwealth Act. In this situation, it may be that the Commonwealth agency can communicate the information to the QPS in accordance with Part VII (discussed below). There are also occasions where Queensland agencies are involved in a joint operation with a Commonwealth law enforcement agency and thereby have access to intercepted communications.

However, while it could be argued that Queensland law enforcement agencies could rely on Commonwealth or other declared State agencies to help in or take over the investigation and obtain a warrant under the Commonwealth Act, this may not always provide the appropriate solution. There may not be the resources available to the agency called upon or it may not have jurisdiction (eg purely intra- state crimes) to help and, in any event, this approach would make the Queensland bodies too dependent on the Commonwealth agencies.12 The jurisdiction issue has troubled some, given that State-based crime will fall outside the jurisdiction of the ACC and AFP. In evidence during the Parliamentary Criminal Justice Committee’s public hearings in 1999, the then Queensland Crime Commissioner expressed concerns about paedophilia, a State-based crime, that is perfectly suited to interception. Investigators may be able to have access to intercepted communications, such as an email from the paedophile to a potential victim setting up a rendezvous. Another area falling outside the Commonwealth agencies’ jurisdiction is State-based corruption and bribery offences.13

3.2 APPLICATION FOR WARRANT

A State eligible authority in whose favour the declaration has been made can apply for an interception warrant. Applications are ex parte, for obvious reasons. The application must be made to an ‘eligible judge’14 or an Administrative Appeals Tribunal (AAT) member nominated by the Attorney-General (see s 6DA)15 and accompanied by an affidavit complying with the requirements of s 42. In cases of urgency, a telephone application may be made: s 50. However, the person who made the telephone application must, within 1 day, give affidavit evidence and the authorisation to the Judge or AAT member (s 51) or the telephone warrant can be revoked (s 52).

12 CJC, Telecommunications Interception and Criminal Investigation in Queensland, pp 35-36.

13 PCJC Report No 50, p 8, and citing hearing transcript pp 4, 25.

14 The Attorney-General may declare a Judge to be an ‘eligible judge’ for the purposes of the Act.

15 Section 6DA was inserted due to the High Court decision in Grollo v Commissioner of the AFP and Ors (1995) 131 ALR 225 indicating incompatibility between judges engaging in administrative functions and normal judicial functions under the Commonwealth Constitution.

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3.3 RELEVANT OFFENCES UPON WHICH APPLICATION FOR WARRANT MADE

Different types of warrants may be applied for in relation to a ‘class 1 offence’ or a ‘class 2 offence’ – a telecommunications service warrant where it is suspected that a particular telecommunications service will be used by a particular person,16 or a named person warrant where it is suspected that a particular person may use more than one telecommunications service in relation to the offence.

A class 1 offence is defined to cover very serious offences (such as murder, , narcotics offences, acts of ) as well as ancillary offences in relation to class 1 offences (eg aiding, abetting, and conspiring).

A class 2 offence is defined in s 5D to cover –

• particular serious offences punishable by life imprisonment or a minimum of 7 years in prison (such as those involving loss of life, serious injury, damage endangering safety, serious arson, drug trafficking, serious fraud, serious loss of revenue to the Government, bribery or corruption, child pornography);

• offences punishable by life imprisonment or a minimum of 7 years in prison that involve a number of offenders in planning and organising sophisticated methods and techniques and involves offences such as (but not limited to) theft, tax evasion, extortion, bribery or corruption, bankruptcy violations, sexual offences involving minors, immigration offences;

• money laundering offences;

• certain computer related offences under the Criminal Code;

• offences ancillary to the above.

The Telecommunications Interception and Other Legislation Amendment Bill 2003 (Cth), which recently passed both Houses of Parliament, will add slavery, sexual servitude, deceptive recruiting, and aggravated people smuggling to the list of ‘class 2’ offences in relation to which a warrant may be sought.

Before issuing a ‘class 1’ interception warrant, the judge or AAT member must be satisfied of a number of things (see ss 45, 45A). Satisfaction must also be reached that the intercepted information would be likely to assist in connection with the agency’s investigation of the class 1 offence(s) having regard to the extent to which alternative investigative methods may be effectively used without prejudicing the investigation.

16 These warrants can be accompanied by a warrant for entry onto specified premises: s 48. Telecommunications (interception) Queensland Bill 2003 (Qld) Page 9

Before a ‘class 2’ interception warrant can be issued, the Judge or AAT member must be satisfied of matters in ss 46 and 46A, which are similar to those for class 1 warrants. However, for the class 2 warrants, regard must be had to a number of privacy related matters ie how much the privacy of people would be likely to be interfered with against the gravity of the conduct constituting the offence(s) under investigation and how much the information would be likely to assist the investigation.

It appears that, during 2001-2002, the main types of serious offences specified in Part VI warrants , for all Commonwealth and State agencies, drug trafficking (825) and narcotics offences (589) (both making up the bulk of offences), and murder (514).17

Note that a warrant to allow entry onto premises can be granted in certain circumstances (eg to install or retrieve the equipment): s 48. Very few have been issued, probably because there is little need for entry onto premises given the technical nature of telecommunications interception. Only 1 warrant was granted during 2001-2002.18

3.4 ISSUE OF WARRANTS

A warrant can be issued for up to 90 days (the 2001-2002 average for all agencies being around 48 days)19 but a further warrant may be issued. Only authorised officers of the agency or another agency can exercise authority conferred by the warrant: s 55. Warrants may be made subject to specific conditions and restrictions: s 49.

During 2001-2002, 2514 warrants were issued under Part VI of the Commonwealth Act, representing an increase of around 17% on the total number for the previous reporting year. A number of reasons were cited for this including that there has been a general increase in the use of telecommunications services, particularly mobile services, by criminals, and widespread recognition of the usefulness of interception as an investigative tool.20

17 Telecommunications (Interception) Act 1979 Report for the Year Ending 30 June 2002, pp 19ff.

18 Telecommunications (Interception) Act 1979 Report for the Year Ending 30 June 2002, p 17.

19 Telecommunications (Interception) Act 1979 Report for the Year Ending 30 June 2002, p 25.

20 Telecommunications (Interception) Act 1979 Report for the Year Ending 30 June 2002, p 13.

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The Telecommunications Interception Division of the AFP (specifically established under the Commonwealth Act) takes action necessary to enable warrants, other than warrants issued to the AFP, to be executed. It has a supervisory function. The actual interception is undertaken in secure facilities separate to where the investigators are located and only a communication that is relevant to the investigation is passed on.

It was reported that total expenditure incurred by agencies in connection with the execution of warrants increased by around 16% during 2001-2002 to $19,969,419, possibly due to the rise in the number of warrants issued. However, it appears that the average expenditure incurred by agencies per warrant has decreased or remained static over the past two reporting periods. The NSW Police had a total expenditure of around $2,623,463 and the Victorian Police a total of $2,968,538. Expenditure for the NSW Crime Commission was $3,933,524.21

If, during the warrant period, the agency is satisfied that the grounds for issuing the warrant no longer exist, the chief officer must revoke the warrant and the AFP Commissioner must be immediately informed as well as any chief officers of other agencies exercising authority under the warrant. A warrant can also be revoked by the agency at any time if the same bodies are informed: ss 56 and 57. In addition, the carrier operating the telecommunications service over which the relevant communications are passing must be notified of issues and revocations of warrants: s 60.

3.5 DEALING WITH INTERCEPTED INFORMATION

Part VII of the Commonwealth Act sets out a number of safeguards and restrictions on the way in which intercepted information can be used. These, set out in broad terms, include –

• no communication of, or using, the intercepted information or information about the warrant (eg who applied, that such warrant exists, the telecommunications service to which it applies), including in evidence in proceedings, except for a purpose under the Act. A breach is an offence;

• employees of a carrier can use the information or warrant information in connection with operating or maintenance type functions;

• employees of a carrier may communicate to an officer of the agency the intercepted information and warrant information for purposes connected with the agency’s investigation of a serious offence but for no other purpose;

21 Telecommunications (Interception) Act 1979 Report for the Year Ending 30 June 2002, p 38. Telecommunications (interception) Queensland Bill 2003 (Qld) Page 11

• a person intercepting the communication may communicate it to the relevant officer;

• a chief officer of the agency intercepting the information may, if the information points to the commission of an offence relevant to another agency, communicate information to that other agency. It would be this provision that Queensland law enforcement agencies have to rely upon to obtain information;

• intercepted information is able to be given in evidence in exempt proceedings (including those regarding prescribed offences under the Act, police discipline, official misconduct etc; see s 5B);

• provision is made for the destruction of records no longer needed.

3.6 REPORTS ABOUT INTERCEPTIONS22

Part IX of the Commonwealth Act sets out requirements about the contents of annual reports that must be given to the Attorney-General regarding applications and warrants under the Act. Section 96 states that the reports provided by State agencies must include a statement of total expenditure connected with the interceptions. Carriers also have reporting obligations under the Act.

The Attorney-General must table an Annual Report containing information set out in ss 100 and 101 regarding statistics on applications made, warrants issued etc as well as about the warrant periods. In addition, it must contain information about how effective the warrants have been in terms of the number of arrests made on the basis of the intercepted information; the types and numbers of offences prosecuted. A range of other information must also be included (see s 103).

The Telecommunications (Interception) Act 1979 Report for the Year Ending 30 June 2002 reports that the number of arrests made during the reporting year on the basis of lawfully intercepted information by all agencies was 1479, an increase of 43% on the previous year (representing 59 arrests for every 100 warrants issued). Agencies have indicated that this increase may be due to the fact that many of the warrants were obtained for drug related offences which may lead to multiple arrests for one offence, a situation less common for other crimes.23 In addition, it was revealed that 935 convictions were based on intercepted information being given in

22 A number of reporting obligations are imposed on the ACC and the AFP but the focus is on State agencies in this Brief.

23 Telecommunications (Interception) Act 1979 Report for the Year Ending 30 June 2002, p 29.

Page 12 Queensland Parliamentary Library evidence.24 In some cases, the weight of the evidence so obtained may cause more guilty pleas to be entered so that the intercepted information does not end up being admitted into evidence. An offender hearing themselves in a taped telephone conversation may be more likely to plead guilty.

In terms of evidentiary value of intercepted information, it has been suggested that recordings of the communications were likely to be less open to allegations of tampering, editing, and selective recording.25

However, there has been some argument that caution is needed in interpreting effectiveness of interception on the basis of such data because it is impossible to show that juries convict offenders ‘on the basis’ of the intercepted material as opposed to other evidence before them.26

3.7 ACCOUNTABILITY PROVISIONS

The most significant of the provisions intended to ensure the accountability of agencies intercepting information under a warrant include –

• a General Register containing particulars of Part VI warrants is kept by the AFP Commissioner. It must be delivered to the Attorney-General every quarter and can be inspected by the Ombudsman to check the extent of compliance;

• the AFP Commissioner must also maintain a Special Register about details of warrants that do not lead to a prosecution;

• the Attorney-General must be provided with a copy of a warrant and instruments revoking it as soon as practicable and, when the warrant expires, a written report about the use of the information obtained under it;

• agencies have to give the Attorney-General information about interception costs during the reporting year to enable the Attorney-General to provide an Annual Report to Parliament;

• independent oversight of Commonwealth agencies’ use of interception powers is given to the Commonwealth Ombudsman who must inspect records to

24 Telecommunications (Interception) Act 1979 Report for the Year Ending 30 June 2002, pp 30ff. Note, however, that the statistics do not necessarily reflect a correlation between warrants issued in a reporting year and convictions obtained in that same year.

25 CJC, Telecommunications Interception and Criminal Investigation in Queensland, pp 32-33.

26 Bronitt, S, ‘Electronic Surveillance, Human rights and Criminal Justice’, (1997) 3(2) Australian Journal of Human Rights, at http://www.austli.edu.au Telecommunications (interception) Queensland Bill 2003 (Qld) Page 13

determine compliance and report to the Attorney-General. At the State level, the same supervisory role is performed by equivalent State bodies.

3.8 CIVIL REMEDIES

A range of civil remedies are available under Part XA to a person who was party to a communication which is unlawfully intercepted. This will also apply if lawfully intercepted information is unlawfully communicated to some other person. The orders are within the court’s discretion but may include declaring the interception or communication to be unlawful; ordering the person at fault to pay the aggrieved party appropriate damages; injunctive relief; or ordering the person at fault to pay an amount representing the total gross income derived by that person as a result.

3.9 AGENCY COMMENTS IN 2002 ANNUAL REPORT

In the Telecommunications (Interception) Act 1979 Report for the Year Ending 30 June 2002, it is recorded that agencies consider that telecommunications interception has proved to be an extremely valuable investigative tool and is likely to remain the case in the future, despite growing technical ‘sophistication’ (eg encryption). The agencies indicate two main reasons for this. The first is that evidence gathered can lead to the successful conclusion of an investigation where alternative evidence is uncorroborated, unavailable or insubstantial. Second, agencies are able to collect a large amount of useful evidence in a way that is generally less resource intensive than other forms of investigation.27 This reflects findings of the Barrett Review in 1994.28

4 POSSIBLE BENEFITS AND CONCERNS

The advantages of and concerns with telecommunications interception over other forms of surveillance techniques have been canvassed in a number of reviews and reports. Obviously, the points listed for either category are contentious. For example, the 2nd Parliamentary Criminal Justice Committee (PCJC) disagreed with the then Criminal Justice Commission (CJC) regarding whether interception was more or less intrusive than other surveillance methods.29

27 Telecommunications (Interception) Act 1979 Report for the Year Ending 30 June 2002, p 11.

28 Barrett, P J, Review into the Long Term Effectiveness of Telecommunications Interception, 1994.

29 The 1995 Reports published by these bodies will be discussed below.

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The benefits of interception have been noted to include the following–30

• less possibility of being detected as not necessary to enter premises to install;

• less risk to personal safety of investigators through less need to physically enter places;

• less intrusive on privacy than, for example, a listening device;

• can direct more accurately other traditional forms of investigation;

• high quality evidential value of the information intercepted and better chance of obtaining convictions;

• more cost-effective in the long run because while there are set-up, operational and other costs, these may be offset by savings in court costs through more effective prosecutions; and the identification and forfeiture of proceeds of crime;

• may reveal if the target has become aware of police attention or if third parties are at risk;

• may reveal and identify other offenders but can also eliminate suspects;

• may assist in locating assets derived from criminal activities;

• effective for investigation crimes with no identifiable victim such as official corruption and money laundering.

Concerns about telecommunications include –

• possible intrusiveness and the likelihood of non-criminal personal conversations being overheard and innocent people having their privacy invaded. The Commonwealth Privacy Commissioner has argued that , where it involves the interception of communications, represents one of the most serious infringements of privacy and that the countervailing benefits to be gained from interception must be considerable to justify its use;31

• fear of abuse of powers by agencies;

• possible start-up and operational costs ;

30 The advantages and concerns were canvassed in the PCJC, Report No 50, pp 18-19.

31 PCJC Report No 50, p 25 citing Human Rights and Equal Opportunity Commission, Review of Telecommunications (Interception) Act 1979, Privacy Commissioner Submission, 1992, pp 1-2. Telecommunications (interception) Queensland Bill 2003 (Qld) Page 15

• lack of adequate accountability mechanisms and safeguards.

5 HISTORY OF QUEENSLAND DEVELOPMENTS

The issue of telecommunications interception powers for law enforcement agencies has been considered on a number of occasions over the past few decades.32

The Fitzgerald Inquiry, in its 1989 Report, noted that criminals have increasing access to optical and audio devices for surveillance and sophisticated communications interception and recording equipment. However, in response to concerns about Government misusing and abusing electronically stored information about citizens, albeit justifiable, legislative attention has instead been directed at restricting Government use of those devices, particularly telecommunications interception.33 The Inquiry considered that the interception of communications, subject to strict controls, was one tool to consider in any comprehensive review of law enforcement powers.34

In September 1991, the CJC and the Office of the Minister for Police and Emergency Services released the Police Powers in Queensland: An Issues Paper, the submissions to which contained opposing viewpoints. The QPS stressed the need for telephone interception powers conferred by State legislation that complied with minimum standards and safeguards set by the Commonwealth Act while other submissions, such as that made by the Queensland Council for Civil Liberties, raised privacy concerns.

5.1 CRIMINAL JUSTICE COMMISSION TELECOMMUNICATIONS INTERCEPTION REPORT – 1995

The CJC’s Telecommunications Interception and Criminal Investigation in Queensland: A Report (January 1995) (the CJC Report) considered whether the QPS and the CJC should have the power to intercept telecommunications in certain prescribed circumstances. The Report found that telecommunications interception powers would enhance the capacity of both bodies to combat organised and major

32 Much of the discussion below is taken from the Criminal Justice Commission’s Telecommunications Interception and Criminal Investigation in Queensland: A Report, January 1995, ch 2.

33 G E Fitzgerald QC, Commission of Inquiry into Possible Illegal Activities and Associated Police Misconduct, Report of a Commission of Inquiry Pursuant to Orders in Council, 1989, p 173.

34 Report of a Commission of Inquiry Pursuant to Orders in Council, 1989, p 313.

Page 16 Queensland Parliamentary Library crime and, if made to comply with the controls and safeguards in the Commonwealth Act, would be less intrusive and more cost effective than other types of electronic surveillance (eg video surveillance, listening devices) already allowed. The CJC did not consider that it was always a practical or appropriate solution for Queensland agencies to rely on Commonwealth agencies to obtain warrants for assisting or taking over investigations.35

It was noted that the 1994 Barrett Review of the operation of the Commonwealth Act had indicated that telecommunications interception can enhance the use and management of other more costly surveillance methods and enable an investigation to be quickly focused. It can, for example, lead to the detection of the main, intermediate and minor ‘players’, the sources and locations of evidence, the methods to be used, locations of meetings etc which can then focus other surveillance such as physical tracking.36 It was also noted that there had been a good success rate in obtaining convictions on the basis of intercepted information.

It was found that the Commonwealth Act has been reviewed more regularly and critically than State legislation dealing with other types of electronic surveillance which has resulted in the Commonwealth Act having a number of accountability and privacy protection measures built into it.37

Accordingly, it was recommended that the Queensland Government introduce a State Telecommunications (Interception) Act conforming to the requirements of the Commonwealth Act.38

The recommendation was supported by the Parliamentary Criminal Justice Committee (PCJC) in its May 1995 Report published following public hearings and reviewing submissions. However, the PCJC considered that the Commonwealth Act contained inadequate mechanisms to protect against invasion of privacy and abuse and recommended that additional safeguards were needed in any Queensland legislation.39

35 CJC, Telecommunications Interception and Criminal Investigation in Queensland, p 39.

36 Review into the Long Term Effectiveness of Telecommunications Iinterception, p 93.

37 CJC, Telecommunications Interception and Criminal Investigation in Queensland, p 13.

38 CJC, Telecommunications Interception and Criminal Investigation in Queensland, p 39.

39 PCJC, Review of the Criminal Justice Commission’s Report on Telecommunications Interception and Criminal Investigation in Queensland, Report No 29, May 1995. Telecommunications (interception) Queensland Bill 2003 (Qld) Page 17

5.2 TELECOMMUNICATIONS (INTERCEPTION) QUEENSLAND BILL 1998

In 1997, the then Coalition Government released a Review of Police Powers Discussion Paper covering a range of policing matters, including interception warrants and also conducted a number of public forums.

In March 1998, the then Minister for Police and Corrective Services and Minister for Racing, the Hon T R Cooper MLA, introduced the Telecommunications (Interception) Queensland Bill 1998 into the Queensland Parliament. It is substantially similar to the 2003 Bill currently before the Parliament, including conferring oversight/inspection powers on a newly established ‘principal inspector’.

When introducing the 1998 Bill, the Minister said that it was intended to complement other investigative resources given to police officers under the PPR Act and was the first step in enabling certain Queensland authorities (the QPS and the then CJC and Queensland Crime Commission (QCC)) to conduct telecommunications interception in accordance with the Commonwealth Act.

The 1998 Bill lapsed with the dissolution of Parliament on 19 May 1998.

During 1999 Tasmania passed interception legislation, making Queensland the only State without it.

5.1 PROJECT KRYSTAL – A STRATEGIC ASSESSMENT OF ORGANISED CRIME IN QUEENSLAND

In June 1999, the QC) and the QPS released a public information paper entitled Project KRYSTAL – A Strategic Assessment of Organised Crime in Queensland40 which was intended to increase public awareness about organised crime in Queensland and to generally explain the law enforcement strategies that have been, and are being, developed to deal with it. It also recommended tactics to improve the detection and disruption of organised crime.

The Report concluded that organised criminal activity was widespread and firmly entrenched in Queensland.41 It was considered that the Queensland public and government representatives must be kept appropriately informed about the nature and extent of such activity.

40 Queensland Crime Commission and Queensland Police Service, Project KRYSTAL – A Strategic Assessment of Organised Crime in Queensland, Public Information Paper, June 1999.

41 Project KRYSTAL – A Strategic Assessment of Organised Crime in Queensland, p 65.

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The Report identified a number of legislative issues restricting the ability of Queensland law enforcement agencies to effectively combat organised crime, one being the lack of power to intercept telecommunications concerning organised crime investigations.42 It noted that interception capabilities are essential to the effective disruption of organised crime and are more selective and less intrusive than the currently used listening devices.43 One of the recommendations made was that law enforcement agencies seek legislative changes – including in the area of telecommunications interception – and appropriate resources to support them.44

The Report noted that technological advances have facilitated a variety of interactions across national borders, not all of which have been legitimate business communications. The use of information technology, particularly the Internet, is a challenge for law enforcement agencies faced with attempting to track coded or encrypted messages or impenetrable secure environments in which information can be transmitted. Increasing incidents of hacking pose a huge threat to financial systems, strategic public utilities, and databases.45 These communications have no jurisdictional boundaries, which creates another obstacle for law enforcement bodies.

5.2 PARLIAMENTARY CRIMINAL JUSTICE COMMITTEE REPORT

During 1999, the PCJC thought it timely to consider the issues involved in telecommunications interception and reported to Parliament in December 1999 (A Report on The Telecommunications Interception Power in Queensland – balancing investigative powers with safeguards, Report No 50). It considered that the central issue was the effect of interception on the privacy of third parties. A number of public hearings were conducted and the Committee also considered evidence about the actual extent of any infringements on privacy in other jurisdictions. It was found that there were no examples, in any jurisdiction, of significant breaches of the legislation or abuse of powers, such as disclosure of material to officers who have no legitimate interest in the investigation, or to a media body.

Although the PCJC considered that the Commonwealth Act’s safeguards were ‘less than optimal’ it was, nevertheless, satisfied that the regime of record-keeping, audit

42 Project KRYSTAL – A Strategic Assessment of Organised Crime in Queensland, pp 15-16.

43 Project KRYSTAL – A Strategic Assessment of Organised Crime in Queensland, p 15.

44 Project KRYSTAL – A Strategic Assessment of Organised Crime in Queensland, p xi.

45 Project KRYSTAL – A Strategic Assessment of Organised Crime in Queensland, p 12. Telecommunications (interception) Queensland Bill 2003 (Qld) Page 19 and inspection, and the safeguards established by the Commonwealth Act did appear to be working well.46

It was noted that there is legal uncertainty about whether a State Parliament has constitutional power to legislate to impose further safeguards than those provided in the Commonwealth Act. Legislation in other States does not vary from the safeguards contained in the Commonwealth legislation. In light of this, the PCJC recommended that Queensland enact legislation to enable law enforcement bodies to intercept telecommunications that accords with the requirements of the Commonwealth Act with no further safeguards apart from the recommendation that an independent inspection role be given to the Public Interest Monitor who would be involved at a stage prior to the warrant application.47 The Public Interest Monitor was established by the PPR Act to monitor, in the public interest, the use of listening devices, appear at applications for approval to use those devices, and conduct covert searches. It was considered that a new role under telecommunications interception legislation would not be dissimilar to that performed already.

The safeguards in the Commonwealth Act plus the general oversight and accountability mechanisms to which Queensland’s law enforcement agencies are subject under relevant State legislation would, according to the Committee, appear to provide a strong supervisory regime.

On 8 November 2000, the then Queensland Minister for Police and Corrective Services tabled his interim response to the PCJC Report stating that the Queensland Government will explore all possible legislative avenues to guarantee that the public’s legitimate civil liberties are protected and also ensure law enforcement agencies have the tools they need to curb major and organised crime. The Minister stated that options for the possible introduction of such powers under a State scheme were still under consideration.

In April 2002, the Parliamentary Crime and Misconduct Committee (PCMC), which superseded the PCJC, wrote to the current Police Minister, the Hon Tony McGrady MP, noting that the final response to Report No 50 had not been tabled. The Police Minister responded that as the Commonwealth Government was in the middle of finalising new arrangements for its crime agencies, Queensland would wait to see what implications those might hold for this State before taking action.48

46 PCJC Report No 50, pp 32-33.

47 PCJC Report No 50, Executive Summary.

48 Parliamentary Crime and Misconduct Committee Annual Report 2001-2002, p 6.

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5.3 RECENT DEVELOPMENTS

In July 2002, it was reported that the Queensland Police Minister had ruled out the introduction of telecommunications interception powers at a meeting of the Australian Police Ministers Council.49 In the aftermath of the October 2002 Bali bombings, Queensland law enforcement agencies again urged the Government to give the CMC and QPS interception powers but this was ruled out by the Premier.50

In January 2003, the Australian Crime Commission (ACC) commenced operation. It has replaced the NCA and incorporates two other Commonwealth bodies. State and Commonwealth Governments have agreed to a framework that would require the Commonwealth and the States legislation to pass complementary legislation. The Australian Crime Commission (Queensland) Act 2003 (Qld), which received assent in November 2003, extends the ACC’s jurisdiction to Queensland offences with no federal aspect, including conducting intelligence operations and investigations, and confers on the ACC certain duties, powers (including coercive examination powers that were not available to the NCA) and functions.

In June 2002, the PCMC wrote to the Premier urging the Government to look favourably on recommendations of the previous PCJC that the CMC and QPS be given telecommunications interception powers. The Premier responded stating that the establishment of the new ACC may have implications for the CMC’s ability to access intercepted information and that this and related issues were under consideration.51

6 TELECOMMUNICATIONS (INTERCEPTION) QUEENSLAND BILL 2003 (QLD)

The Telecommunications (Interception) Queensland Bill 2003 was introduced on 9 October 2003 by Leader of the Opposition, Mr Lawrence Springborg MP as a Private Member’s Bill. Mr Springborg stated that he wished to respond to the request of the QPS by introducing laws that make it easier for them to investigate serious crime and organised criminal activity.52

49 Sean Parnell, ‘State police denied phone taps’, Courier Mail, 20 July 2002, p 4.

50 Matthew Franklin, ‘Police won’t get phone tap powers’, Courier Mail, 31 October 2002, p 5.

51 Parliamentary Crime and Misconduct Committee Annual Report 2002-2003, p 5.

52 Queensland Nationals, ‘Springborg moves for phone interception powers’, Press Release, 9 October 2003. Telecommunications (interception) Queensland Bill 2003 (Qld) Page 21

In particular, the new powers provided by the Bill aim to curb the significant growth in mobile drug laboratories – small laboratories that are quickly and easily moved to avoid detection – in Queensland over the past two years (from 77 to 138), recently identified by the Australian Crime Commission.53 Queensland has the highest number of such laboratories in Australia, making up over half the national total of 240, with the next highest being New South Wales at 32.

The objective of the Bill is to establish a recording, reporting and inspection regime to complement the Commonwealth Act so that the QPS and CMC may have the power to use telecommunications interception as an investigative tool for serious offences prescribed by the Commonwealth Act.54

As noted earlier, before the Commonwealth Attorney-General can declare the QPS or CMC to be an agency for the purposes of obtaining a warrant under the Commonwealth Act, s 35 of that Act requires State legislation to be passed establishing the aforementioned reporting, inspection and recording requirements. The Bill seeks to satisfy the preconditions for the making of that declaration. The Attorney-General must be satisfied that the relevant law of the State makes satisfactory provision for –

• imposing certain record keeping obligations on chief officers of eligible authorities. Accordingly, cl 6 provides that the QPS Commissioner and the CMC chair (as chief officers of those bodies) must cause to be kept in the authority’s records –

• each warrant issued;

• a copy of each notification given to the AFP of the issue of a warrant on a telephone application;

• each instrument revoking a warrant;

• a copy of each evidentiary certificate. Section 61(4) of the Commonwealth Act allows ‘certifying officers’ (under the Queensland Bill being specified senior officers of the QPS and a Commissioner of the CMC) to issue a written certificate setting out relevant facts about the execution of a warrant and dealing with information obtained under it. The certificate can be received into evidence as prima facie evidence of matters stated in it; and

• each authorisation to allow the communication of intercepted information.

53 Australian Crime Commission, Australian Illicit Drug Report 2001-2002, March 2003, p 47.

54 Mr L Springborg MP, Second Reading Speech, p 3886; Telecommunications (Interception) Queensland Bill 2003 (Qld), cl 3.

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In addition, cl 7 provides that the chief officers of the QPS and CMC (for brevity, these persons will be referred to as ‘chief officers’) must keep written records about telephone applications for warrants; a statement about the outcome of the application; and particulars about the warrant and interceptions that take place under it. The records must also contain particulars of restricted records (ie records of intercepted information, whether lawfully obtained or not) in the possession of the authority. They must also provide details about the use made of lawfully obtained information, including when given in evidence in a proceeding. The Explanatory Notes (p 4) state that this clause is intended to facilitate the independent inspection powers under the Bill (see below).

• requiring the chief officers to give the Minister a copy of each warrant issued to the QPS or CMC and each instrument revoking such warrant as soon as practicable (see cl 8(1));

• requiring the chief officers to give the Minister, within 3 months after the warrant ceases, a written report about the use made of the information obtained by interceptions under the warrant and the communication of such information to third parties outside the QPS or CMC (see cl 8(2));

• requiring the chief officers to give the Minister as soon as practicable, but within 3 months after 30 June, a written report that sets out the information that Part IX, Div 2 of the Commonwealth Act requires to be set out in the Attorney- General’s Annual Report (eg Telecommunications (Interception) Act 1979 Report for the Year Ending 30 June 2002 (see above)) and that can be derived from the QPS’ or CMC’s records. That is –

• how many applications made and warrants issued;

• particulars about duration of warrants;

• information about the effectiveness of warrants;

• report regarding interceptions without a warrant;

• expenditure information set out in s 103.

These matters were discussed earlier in the context of the Commonwealth Act. Clause 8(1)(c) of the Bill gives effect to this requirement. In addition, cl 8(2) states that the report to the Minister must include a statement of the total expenditure, including that of a capital nature, incurred by the CMC and QPS;

• requiring the State Minister to give the Commonwealth Attorney-General a copy of the warrant issued, or the instrument revoking it, or the abovementioned reports as soon as practicable after such is received (see cl 9); Telecommunications (interception) Queensland Bill 2003 (Qld) Page 23

• requiring the chief officer to keep a restricted record in a secure place; and to destroy it when no longer needed or required for inspections (see cl 10);

• requiring regular inspections of the QPS’ and CMC’s records for the purpose of ascertaining the extent of compliance with security and destruction, and recording requirements, and associated matters (see above). The inspection must be by an authority independent of the QPS and CMC. This function is performed by the Ombudsman for the Commonwealth, NSW, and Victorian legislation. Part 3 of the Bill (cls 11-12) gives the principal inspector this independent inspection function. The role will be performed by the Public Interest Monitor, as suggested by the PCJC’s Report No 50 which also noted that the role was accepted by a number of stakeholders, even by those such as the Council for Civil Liberties which opposed interception powers.55

The s 35 precondition concerning the independent inspecting authority requires that authority to have ‘sufficient powers conferred [on it] to enable [it] to make a proper inspection of’ the agencies’ records. Accordingly, cls 15-17 set out the principal inspector’s general inspection powers to assist him or her in checking compliance and enables the principal inspector to obtain relevant information from officers of agencies or require their attendance before a person. Failure to comply without reasonable excuse is an offence: cl 25.

• requiring the independent inspecting authority to report to the Minister about the results of the inspection. Clause 13 of the Bill requires the principal inspector to give such a written report to the Minister within 3 months after the end of each financial year or at any other times as the Minister requests. The Minister must give the Commonwealth Attorney-General a copy as soon as practicable: cl 23;

• empowering the inspecting authority to make a report about any contravention of the Commonwealth Act or the requirements about providing the State Minister with a copy of each warrant and/or revocation instrument (see cl 14);

Clause 21 of the Bill prevents the principal inspector from disclosing information obtained in that capacity when making a report as Public Interest Monitor. It also makes it an offence for a person to make unauthorised disclosure of intercepted information that came to their knowledge in their capacity as a principal inspector. Note that cl 22 enables the principal inspector to exchange information with the Commonwealth Ombudsman where relevant to each other’s functions.

A general confidentiality provision, applying to persons having functions under the legislation, is contained in cl 24.

55 PCJC Report No 50, pp 35-37.

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This Publication:

RBR 2003/35 ‘Telephone Tapping’ Powers for Queensland Law Enforcement Agencies: the Telecommunications (Interception) Queensland Bill 2003 (Qld) (QPL November 2003) Related Publications:

LB 3/00 Police Powers and Responsibilities Bill 2000 – Surveillance Warrants (QPL March 2000)