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Telecommunications (Interception) Queensland
TELECOMMUNICATIONS
(INTERCEPTION) QUEENSLAND BILL
1998
EXPLANATORY NOTES
GENERAL OUTLINE
Objective of the Legislation
The legislation is to establish a recording, reporting and inspection
regime to complement the Commonwealth Telecommunications
(Interception) Act 1979, so that the Queensland Police Service (QPS), the
Queensland Crime Commission (QCC) and the Criminal Justice
Commission (CJC) may use telecommunications interception as an
investigative tool for serious offences prescribed as either Class 1 or Class 2
offences (see schedule for relevant provisions of the Commonwealth Act).
Obtaining telecommunications interception warrants for the investigation
of serious offences by the QPS, the QCC and the CJC, forms an integral
part of the Governments law and order policy.
Means of Achieving Policy Objectives
The telephone, facsimile machine and increasingly the computer are
firmly established devices that people use to communicate with each other.
Criminal offenders involved in serious crimes such as drug trafficking, also
use telephones and the like when speaking with their colleagues in crime.
That information is compelling evidence against criminals in any later court
hearing. However, intercepting and recording those conversations is only
lawful where the interception is authorised by the Commonwealth
Telecommunications (Interception) Act 1979. Queensland law enforcement
agencies investigating serious crimes cannot intercept telephone
conversations etc. unless Queensland has legislation which is consistent
with the Commonwealth Act, and has satisfied the Commonwealth that
there is in place stringent practices and procedures to ensure compliance
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Telecommunications (Interception) Queensland
with the safeguards in the Commonwealth Act.
Alternative Means of Achieving Policy Objectives
The policy objectives cannot be achieved in any way other than the
introduction of the Act.
Estimated Cost of Implementation for Government
Costs immediately following enactment of the legislation will be minor.
When the legislation commences there will be costs associated with the
recording, reporting and inspection processes required under the Bill.
However, similar processes occur under existing internal accountability
measures related to the use of other surveillance activities.
The capital and operating costs of an interception facility is dependent on
many factors, for example, the size of the facility and whether the QPS,
QCC and CJC will have a shared facility or independent facilities.
Outsourcing options within the legislative framework may also be explored
and so have a significant impact on the capital costs. The options for
telecommunications interception, and their respective costs and benefits are
yet to be fully examined.
What ever the option decided, it is anticipated that these costs will be
off-set to some extent by--
· the identification of criminal proceeds and subsequent forfeiture
to the Crown;
· productivity increases through better utilisation of investigative
resources, for example, deployment of surveillance teams and the
ability to maintain the focus of the investigation; and
· savings in court time, for example, because of pleas of 'guilty'
based substantially on strength of telephone intercept evidence.
Known costs associated with telecommunications interception are--
· a contribution to the Commonwealth by the State of $345,000
during the first two years of operation, in connection with the
researching and developing of new interception technology; and
· a payment to the Commonwealth of $200 for each warrant
obtained.
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Telecommunications (Interception) Queensland
Consistency with Fundamental Legislative Principles
The Bill does not confer any powers on police officers to intercept
telecommunications or to obtain a warrant to intercept telecommunications.
The authority to intercept telecommunications is conferred by the
Commonwealth Act. This Bill establishes recording, reporting, and
inspection requirements for eligible authorities in Queensland. These
legislative requirements are necessary before an eligible authority will be
declared an agency by the Commonwealth. This agency status enables the
authority to intercept telecommunications under the Commonwealth Act.
Presently, the interception is lawful where a warrant has been issued by a
judge of the Federal Court or a member of the Administrative Appeals
Tribunal appointed by the Commonwealth Attorney General.
The Commonwealth Act recognises the importance of privacy and the
protection of law abiding citizens, by ensuring that investigative powers into
prescribed offences are properly balanced with an individual's right to
privacy. Before issuing the warrant the issuer must consider a number of
matters, including the privacy of the person. Protective measures, such as
the authority to revoke the warrant in certain circumstances, also apply after
a warrant is issued.
Because of the covert nature of telecommunications interception, an
application for a warrant is not subject to the principles of natural justice.
However, after the warrant is issued, records relating to the warrant and the
use of information obtained under the warrant, is subject to independent
inspection by a person appointed under the Act as the Principle Inspector.
There are a number of new offences required in the legislation to
maintain consistency with the Commonwealth Act. Clause 24 of the Bill
imposes a penalty on an officer of an eligible authority who without
reasonably excuse, refuses or fails to attend, or give information or answer
questions of the principle inspector. However, any answer or information
given is not admissible as evidence against the person in a proceeding, other
than a proceeding for an offence against clause 24.
Consultation conducted in Development of the Bill
The Commonwealth Act has been the subject of a number of reviews,
the most recent being the Barrett Review in 1994. In 1995, the CJC and the
Parliamentary Criminal Justice Committee conducted public hearings and
received written submissions before each published a report with respect to
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Telecommunications (Interception) Queensland
telecommunications interception for the investigation of offences in
Queensland.
In 1997, a public Discussion Paper was released by the Government in
association with public forums held at major population centres around
Queensland. That Paper discussed a range of police powers, including the
power to obtain a telecommunications interception warrant.
NOTES ON PROVISIONS
Short title
Telecommunications (Interception) Queensland Bill 1998
Part 1--Preliminary
Clauses 1 and 2 specify the short title of the legislation and provide for
its commencement on a date fixed by proclamation.
Clause 3 describes the objective of the legislation.
Clause 4 provides for a dictionary in the Schedule containing definitions
consistent with the Commonwealth Act.
Part 2--Functions of Eligible Authority
Eligible authority to keep documents connected with issue of warrants
Clause 5 requires the chief officer of the eligible authority [commissioner
of the QPS, the commissioner of the QCC and the chairperson of the CJC],
to ensure their respective organisations keep records of warrants issued, of
notifications under the Commonwealth Act, of instruments revoking
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Telecommunications (Interception) Queensland
warrants, of evidentiary certificates issued by certifying officers of their
organisations, and of each authorisation to receive information from an
interception.
This clause is to facilitate the inspection powers and reporting function of
the principal inspector.
Other records to be kept by an eligible authority in connection with
interceptions
Clause 6 requires the chief officer of an eligible authority to cause
records relating to each application for an interception warrant, to warrants
issued and to warrants refused, to the movements of restricted records, to
the use of lawfully obtained information, and to the use of lawfully obtained
information as evidence in a proceeding.
This clause is to facilitate the inspection powers and reporting function of
the principal inspector.
Documents to be given by an eligible authority to the Minister
Clause 7 requires the chief officer of an eligible authority to give to the
Minister a copy of each warrant and instrument revoking a warrant, a report
relating to the use of information obtained after a warrant ends, and an
annual report setting out information required under the Commonwealth
Act including a statement of the total expenditure incurred by the authority
in connection with the execution of warrants during the year.
This information is used by the Commonwealth to monitor the use and
effectiveness of interception warrants obtained by declared agencies, and to
prepare an annual report.
Documents to be given by State Minister to Commonwealth Minister
Clause 8 requires that copies of warrants, instruments revoking warrants
and reports received by the Minister in accordance with the previous clause
are to be forwarded to the Commonwealth Minister, to enable the
Commonwealth to monitor the use and effectiveness of interception
warrants obtained by declared agencies, and to prepare an annual report.
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Telecommunications (Interception) Queensland
Keeping and destruction of restricted records
Clause 9 requires the chief officer of an eligible authority to keep
restricted records in a secure place and to destroy restricted records that are
no longer required.
This clause is to ensure that restricted records are only used in accordance
with the Commonwealth Act.
Part 3--Functions and powers of Principal inspector
General functions and powers
Clause 10 describes in general terms for the inspection and reporting
functions and powers of the principal inspector with respect to
telecommunications interception warrants and related records.
Regular inspections of an eligible authority's records
Clause 11 requires the principal inspector to inspect an eligible authority's
records at least twice a year, and allows the principal inspector to inspect an
eligible authority's records to check compliance with the Part 2 of the Act by
the officers of that eligible authority.
Reports
Clause 12 requires the principal inspector to report annually on the
results of inspections referred to in clause 11. The principal inspector may
at any time, or on the request of the Minister, report the results of an
inspection under this Part.
The principal inspector is required to advise the Commonwealth Minister
of the report and give a copy of the report to the relevant eligible authority.
This clause ensures that a timely report relating to compliance with the
Act by each eligible authority is completed and forwarded to the
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Telecommunications (Interception) Queensland
Commonwealth.
Principal inspector may report on breaches
Clause 13 allows the principal inspector to include in the report a
reference to a contravention of the Commonwealth Act or this Act, by an
officer of an eligible authority.
Principal inspector's general powers for inspections
Clause 14 confers powers on the principal inspector to enter a premises
of an eligible authority, access its records, make copies of those records,
and may require an officer of the authority to provide information relevant
to an inspection. The clause also ensures that the officers of the authority
assist the principal inspector.
This clause provides the principal inspector with powers necessary to
check compliance with this Act and the Commonwealth Act.
Power to obtain relevant information
Clause 15 enables the principal inspector to require an officer of an
eligible authority to provide information in writing, to require an officer to
attend and to require an officer to answer questions relevant to an
inspection. The principal inspector may also require the authority's chief
officer or a person nominated by the chief officer, to attend and answer
questions relevant to an inspection.
This clause confers on the principal inspector coercive powers of
investigation with respect to compliance with the Act or the Commonwealth
Act.
Principal inspector to be given information and access despite other
laws
Clause 16 confirms that the powers of the principal inspector to obtain
information are not subject to any other law which may excuse the giving of
that information. The information obtained by compulsion under this Part
is not admissible as evidence against the provider of that information, other
than for a prosecution relating to an offence referred to in clause 24.
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Telecommunications (Interception) Queensland
The clause also allows an officer of the authority to give information to
an inspecting officer for the purpose of an inspection of the authorities
records.
Dealing with information for inspection and report
Clause 17 allows the principal inspector and inspecting officer to
communicate information to each other, and to use and record information
for the purpose of an inspection or a report under this part.
Inspecting officer not to be sued
Clause 18 protects an inspecting officer and any person assisting the
inspecting officer from any civil action resulting from an act done in good
faith in the performance of a function conferred by this part.
Delegation by principal inspector
Clause 19 prescribes those functions the principal inspector may delegate
to an appropriately qualified inspecting officer.
Confidentiality provision s relating to inspecting officer
Clause 20 regulates the recording and disclosure of information by an
inspecting officer, with respect to the functions under this Act and with
respect to any functions the officer performs under another Act.
Exchange of information between principal inspector and
Commonwealth ombudsman
Clause 21 enables the exchange of information between the principal
inspector and the Commonwealth Ombudsman. The purpose of this clause
is to facilitate a co-operative approach between Queensland and the
Commonwealth when ensuring compliance by officers using powers under
the Commonwealth Act.
Part 4--Miscellaneous
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Telecommunications (Interception) Queensland
Copies of reports for Commonwealth Minister
Clause 22 places an obligation on the Minister to provide to the
Commonwealth Minister with a copy of reports prepared by the principal
inspector.
General confidentiality provision
Clause 23 regulates the disclosure of information by persons previously
or currently engaged in the administration of the Act. Confidentiality
provisions relating to inspecting officers are contained in Clause 20. Clause
23 restricts the disclosure of information obtained by these persons in their
capacity under the Act, to prescribed circumstances. These include
disclosure made for the discharge of their functions under the Act, or for a
proceeding under the Commissions of Inquiry Act 1950, the Criminal
Justice Act 1989, or the Crime Commission Act 1997. Non-compliance
with the provisions of this clause will constitute an offence.
Offences relating to inspections under pt 3
Clause 24 prescribes penalties for persons who do not comply with the
directions and requirements of the principal inspector or inspecting officers
relating to information and inspections, or who obstruct the principal
inspector's functions.
Proceeding for offence
Clause 25 requires any proceedings for an offence be commenced within
a specified period and dealt with in the magistrates court.
Regulation-making power
Clause 26 allows Governor in Council to make regulations under this
Act.
Attachment
Clause 27 provides for an attachment containing the relevant provisions
of the Commonwealth Act.
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Telecommunications (Interception) Queensland
SCHEDULE
Telecommunications (Interception) Act 1979
The relevant provisions of the Commonwealth Telecommunications
(Interception) Act 1979 are as follows--
Interpretation
5. (1) In this Act, unless the contrary intention appears:
"agency" means:
(a) ...
(b) except in Part VII:
(i) ...
(ii) an eligible authority of a State in relation to which a
declaration under section 34 is in force; and
...
"certifying officer", in relation to an agency, or an eligible authority of a
State, means:
(a) ...
(b) ...
(c) in the case of the Police Force of a State--the Commissioner, a
Deputy Commissioner ...
(d) ...
(e) ...
(f) in the case of the Criminal Justice Commission--a
Commissioner of the Criminal Justice Commission.
"chief officer", in relation to an agency, or an eligible authority of a State,
means--
(a) ...
(b) ...
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Telecommunications (Interception) Queensland
(c) in the case of the Police Force of a State--the Commissioner of
that Police Force; or
(d) ...
(e) ...
(f) in the case of the Criminal Justice Commission--the Chairman
of the Commission; or
(g) ...
"class 1 offence" means:
(a) a murder, or an offence of a kind equivalent to murder;
(b) a kidnapping, or an offence of a kind equivalent to kidnapping;
(c) a narcotics offence; or
(d) an offence constituted by:
(i) aiding, abetting, counselling or procuring the commission
of;
(ii) being, by act or omission, in any way, directly or indirectly,
knowingly concerned in, or party to, the commission of; or
(iii) conspiring to commit an offence of a kind referred to in
paragraph (a), (b) or (c);
and, except for the purposes of an application for a warrant by an
agency other than the Authority, includes an offence in relation to
which the Authority is conducting a special investigation within
the meaning of the Authority Act.
"class 2 offence" has the meaning given by section 5D.
"Commissioner of Police" means the Commissioner of Police referred to
in section 6 of the Australian Federal Police Act 1979, and includes an
acting Commissioner of Police;
"commissioner" means:
(a) in relation to the Police Force of a State--the Commissioner of
Police (however designated) of that State; or
(b) in relation to the Criminal Justice Commission--a member of the
Commission, including the Chairman.
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Telecommunications (Interception) Queensland
"communicate", in relation to information, includes divulge;
"communication" includes conversation and a message, and any part of a
conversation or message, whether:
(a) in the form of:
(i) speech, music or other sounds;
(ii) data;
(iii) text;
(iv) visual images, whether or nor animated; or
(v) signals; or
(b) in any other form or in any other combination of forms;
"conduct" includes any act or omission;
"Criminal Justice Act" means the Criminal Justice Act 1989 of
Queensland;
"Criminal Justice Commission" means the Criminal Justice Commission
of Queensland;
"designated warrant information", has the meaning given by section
6EA;
"eligible authority", in relation to a State, means:
(a) in any case--the Police Force of that State; or
(b) ...
(c) in the case of Queensland--the Criminal Justice Commission;
"inspecting officer" means:
(a) the Ombudsman;
(b) a Deputy Commonwealth Ombudsman; or
(c) a member of the staff referred to in subsection 31(1) of the
Ombudsman Act 1976;
"in the possession of", in relation to a document, record or copy, includes
in the custody of or under the control of;
"member of a police force" means:
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Telecommunications (Interception) Queensland
(a) ...
(b) an officer of the Police Force of a State or Territory;
"Minister", in relation to a State, means:
(a) except where paragraph (b) applies--a Minister of the Crown of
that state; or
(b) ...
"narcotics offence" means an offence punishable as provided by section
235 of the Customs Act 1901;
"nominated AAT member" means a member of the Administrative
Appeals Tribunal in respect of whom a nomination is in force under
section 6DA to issue warrants under Part VI.
"oath" includes affirmation;
"offence" means an offence against the law of the Commonwealth or of a
State;
"officer", in relation to an agency, or an eligible authority of a State, means:
(a) ...
(b) ...
(c) in the case of a Police Force of a State--an officer of that Police
Force; or
(d) ...
(e) ...
(f) in the case of the Criminal Justice Commission:
(i) a Commissioner of the Commission; or
(ii) a person who is an officer of the Commission for the
purposes of the Criminal Justice Act; or
(g)...;
"Ombudsman" means the Commonwealth Ombudsman;
"original warrant" means a warrant other than a renewal of a warrant;
"Part VI warrant" means a warrant issued or to be issued under Part VI;
"passing over" includes being carried;
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Telecommunications (Interception) Queensland
"permitted purpose", in relation to an agency, or an eligible authority of a
State, means a purpose connected with:
(a) in any case:
(i) an investigation by the agency or eligible authority of a
prescribed offence;
(ii) the making by an authority, body or person of a decision
whether or not to begin a relevant proceeding in relation to
the agency or eligible authority;
(iii) a relevant proceeding in relation to the agency or eligible
authority;
(iv) the exercise by the chief officer of the agency or eligible
authority of the powers conferred by section 68; or
(v) the keeping of records by the agency under Part VIII, or by
the eligible authority under the provisions of a law of the
State that impose on the chief officer of the authority
requirements corresponding to those imposed on the
Chairman of the Authority by subsections 80(2), 81(2) and
81(3);
(b) ...
(c) in the case of the Police Force of a State:
(i) an investigation of, or an inquiry into, alleged misbehaviour,
or alleged improper conduct, of an officer of that State, being
an investigation or inquiry under a law of that State or by a
person in the person's capacity as an officer of that State;
(ii) a report on such an investigation or inquiry;
(iib) the making by a person of a decision in relation to the
appointment, re-appointment, term of appointment or
retirement of an officer or member of staff of that Police
Force;
(iib) a review (whether by way of appeal or otherwise) of such a
decision;
(iii) the tendering to the Governor of that State of advice to
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Telecommunications (Interception) Queensland
terminate, because of misbehaviour or improper conduct, the
appointment of an officer of that State;
(iv) deliberations of the Executive Council of the State in
connection with advice to the Governor of that state to
terminate, because of misbehaviour or improper conduct, the
appointment of an officer of that State; or
(d) in the case of an eligible authority of a State:
(i) an inspection of the authority's records that is made under a
requirement of the law of that State, being a requirement of
the kind referred to in paragraph 35(1)(h); or
(ii) a report on such an inspection;
"police disciplinary proceeding" means a disciplinary proceeding, before
a tribunal or body that is responsible for disciplining members of the
Australian Federal Police or officers of a Police Force of a State,
against a member of the Australian Federal Police, or an officer of that
Police Force, as the case may be, not being a proceeding by way of a
prosecution for an offence;
"premises" includes:
(a) any land;
(b) any structure, building, aircraft, vehicle, vessel or place (whether
or not); and
(c) any part of such a structure, building, aircraft, vehicle, vessel or
place;
"prescribed investigation", in relation to a Commonwealth agency or an
eligible authority of a State:
(a) ...
(b) ...
(c) ...
(d) in the case of the Criminal Justice Commission--means an
investigation that the Commission is conducting in the
performance of its functions under the Criminal Justice Act; or
(e) ...;
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Telecommunications (Interception) Queensland
"prescribed offence" means:
(a) a serious offence;
(b) an offence against subsection 7(1) or section 63;
(c) an offence against a provision of Part VIIB of the Crimes Act
1914;
(d) any other offence punishable by imprisonment for life or for a
period, or maximum period, of at least 3 years; or
(e) an ancillary offence relating to an offence of a kind referred to in
paragraph (a), (b), (c) or (d) of this definition;
"proceeding" means:
(a) a proceeding or proposed proceeding in a federal court or in a
court of a State or Territory;
(b) a proceeding or proposed proceeding, or a hearing or proposed
hearing, before a tribunal in Australia, or before any other body,
authority or person in Australia having power to hear or examine
evidence; or
(c) the examination or proposed examination by or before such a
tribunal, body, authority or person;
"record" means:
(a) in relation to information--a record or copy, whether in writing
or otherwise, of the whole or a part of the information; or
(b) in relation to an interception, whether or not in contravention of
subsection 7(1), of a communication:
(i) a record or copy, whether in writing or otherwise, of the
whole or a part of the communication, being a record or
copy made by means of the interception; or
(ii) a record or copy, whether in writing or otherwise, of the
whole or a part of a record or copy that is, by virtue of any
other application or applications of this definition, a record
obtained by the interception;
"relevant offence", in relation to a Commonwealth agency or an eligible
authority of a State, means:
(a) ...
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Telecommunications (Interception) Queensland
(b) ...
(c) in the case of the Police Force of a State--a prescribed offence
that is an offence against a law of that State; or
(d) ...
(e) ...
(f) in the case of the Criminal Justice Commission--a prescribed
offence that is an offence against the law of Queensland and to
which a prescribed investigation relates; or
(g) ...
"relevant statistics", in relation to applications of a particular kind, means
all of the following:
(a) how many applications of that kind were made;
(b) how many applications of that kind were withdrawn or refused;
and
(c) how many warrants were issued on applications of that kind;
"renewal", in relation to a warrant issued to an agency in respect of a
telecommunications service, means a warrant:
(a) that is issued to the agency in respect of that service; and
(b) the application for which was made while:
(i) the first-mentioned warrant; or
(ii) a warrant that is, by virtue of any other application or
applications of this definition, a renewal of the
first-mentioned warrant;
was still in force;
"renewal application" means an application by an agency for a warrant in
respect of a telecommunications service, being an application made
while a warrant issued to the agency in respect of that service is still in
force;
"restricted record" means a record obtained by means of an interception,
whether or not in contravention of subsection 7(1), of a
communication passing over a telecommunications system;
"serious offence", means an offence that is or has been a class 1 offence or
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Telecommunications (Interception) Queensland
a class 2 offence;
"'telecommunications network" means a system, or series of systems,
for carrying communications by means of guided or unguided
electromagnetic energy or both, but does not include a system, or
series of systems, for carrying communications solely by means of
radiocommunication;
"telecommunications service" means a service for carrying
communications by means of guided or unguided electromagnetic
energy or both, being a service the use of which enables
communications to be carried over a telecommunications system
operated by a carrier but not being a service carrying communications
solely by means of radiocommunication;
"telecommunications system" means:
(a) a telecommunications network that is within Australia; or
(b) a telecommunications network that is partly within Australia, but
only to the extent that the network is in Australia;
and includes equipment, a line or other facility that is connected to such
a network and is within Australia;
"telephone application" means an application made by telephone for a
Part VI warrant;
"warrant" means:
(a) ...
(b) in Part VI--a Part VI warrant.
Exempt proceedings
5B. A reference in this Act to an exempt proceeding is a reference to:
(a) a proceeding by way of a prosecution for a prescribed offence; or
(b) a proceeding for the confiscation or forfeiture of property, or for
the imposition of a pecuniary penalty, in connection with the
commission of a prescribed offence; or
(c) a proceeding for the taking of evidence pursuant to section 43 of
the Extradition Act 1988, in so far as the proceeding relates to the
prescribed offence; or
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Telecommunications (Interception) Queensland
(d) a proceeding for the extradition of a person from a State or
Territory to another State or Territory, in so far as the proceeding
relates to a prescribed offence; or
(da) a proceeding by way of a coroner's inquest in, in the opinion of
the coroner, the event that is the subject of the inquest may have
resulted from the commission of a prescribed offence; or
(e) a police disciplinary proceeding; or
(f) any other proceeding (not being a proceeding by way of a
prosecution for an offence) in so far as it relates to alleged
misbehaviour, or alleged improper conduct, of an officer of the
Commonwealth or of a State; or
(g) ...
(h) ...
(i) ...
(j) ...
(k) ...
(l) a proceeding by way of a bail application if the application relates
to a proceeding by way of a prosecution for a prescribed offence;
or
(m) a proceeding by way of review of a decision to refuse such a bail
application.
Class 2 offences
Class 2 offences
5D. (1) This section sets out the offences that are class 2 offences for the
purposes of this Act.
Serious offences etc.
(2) An offence is a class 2 offence if:
(a) it is an offence punishable by imprisonment for life or for a
period, or maximum period, of at least 7 years; and
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Telecommunications (Interception) Queensland
(b) the particular conduct constituting the offence involved, involves
or would involve, as the case requires:
(i) loss of a person's life or serious risk of loss of a person's
life; or
(ii) serious personal injury or serious risk of serious personal
injury; or
(iii) serious damage to property in circumstances endangering
the safety of a person; or
(iv) trafficking in prescribed substances; or
(v) serious fraud; or
(vi) serious loss to the revenue of the Commonwealth, a State or
the Australian Capital Territory; or
(vii) bribery or corruption of, or by:
(A) an officer of the Commonwealth; or
(B) an officer of a State; or
(C) an officer of a Territory.
Offences involving planning and organisation
(3) An offence is also a class 2 offence if it is an offence punishable by
imprisonment for life or for a period, or maximum period, of at least 7
years, where the offence:
(a) involves 2 or more offenders and substantial planning and
organisation; and
(b) involves, or is of a kind that ordinarily involves, the use of
sophisticated methods and techniques; and
(c) is committed, or is of a kind that is ordinarily committed, in
conjunction with other offences of a like kind; and
(d) consists of, or involves, any of the following:
(i) theft;
(ii) handling of stolen goods;
(iii) tax evasion;
(iv) currency violations;
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Telecommunications (Interception) Queensland
(v) extortion;
(vi) bribery or corruption of, or by:
(A) an officer of the Commonwealth; or
(B) an officer of a State; or
(C) an officer of a Territory;
(vii) bankruptcy violations;
(viii)company violations;
(ix) harbouring criminals;
(x) armament dealings;
(xi) a sexual offence against a person who is under 16 (including
an offence against Part IIIA of the Crimes Act 1914).
Money laundering offences
(4) An offence is also a class 2 offence if it is an offence against any of
the following provisions:
(a) section 81 or 83 of the Proceeds of Crime Act 1987;
(b) section 73 of the Confiscation of Proceeds of Crime Act 1989 of
New South Wales;
(c) section 41Q of the Crimes (Confiscation of Profits) Act 1986 of
Victoria;
(d) section 64 of the Crimes (Confiscation of Profits) Act 1989 of
Queensland;
(e) section 563A of The Criminal Code of Western Australia;
(f) section 10b of the Crimes (Confiscation of Profits) Act 1986 of
South Australia;
(g) section 67 of the Crime (Confiscation of Profits) Act 1993 of
Tasmania;
(h) section 74 of the Proceeds of Crime Act 1991 of the Australian
Capital Territory.
Offence against Part VIA of the Crimes Act 1914
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Telecommunications (Interception) Queensland
(5) An offence is also a class 2 offence if it is an offence against Part
VIA of the Crimes Act 1914.
Offences connected with other class 2 offences
(6) An offence is also a class 2 offence if it is an offence constituted by:
(a) aiding, abetting, counselling or procuring the commission of; or
(b) being, by act or omission, in any way, directly or indirectly,
knowingly concerned in, or party to, the commission of; or
(c) conspiring to commit;
an offence that is a class 2 offence under any of the preceding
subsections.
Officer of a State
(7) Despite subsection 6G(3), a reference in this section to an officer of a
State includes a reference to an officer of the Police Force of a State.
Investigation of an offence
6A. (1) A reference in this Act to the investigation by an agency, or by an
eligible authority of a State, of an offence is a reference to:
(a) ...
(b) in the case of a Police Force of a State--an investigation of that
offence, in the course of the performance by that Police Force of
its functions, by officers of that Police Force; or
(c) in the case of ...the Criminal Justice Commission...--a prescribed
investigation, in so far as it relates to that offence.
(2) A reference in this Act to an investigation, in relation to an offence, is,
in the case of an offence that is suspected on reasonable grounds of
being likely to be committed, a reference to the investigation of the
likely commission of that offence.
Issue of warrant to agency or eligible authority
6C. For the purposes of this Act, a warrant issued on an application by
an agency or an officer of an agency, or on an application by an eligible
authority of a State, shall be taken to be issued to that agency or eligible
23
Telecommunications (Interception) Queensland
authority, as the case may be.
Judges
6D. (1) In this Act, unless the contrary intention appears:
"eligible Judge" means a judge in relation to whom a consent under
subsection (2) and a declaration under subsection (3) are in force;
"Judge" means a person who is a judge of a court created by the
Parliament.
(2)A judge may in writing consent to be nominated by the Minister
under subsection (3).
(3)The Minister may in writing declare Judges in relation to whom
consents are in force under subsection (2) to be eligible Judges for the
purposes of this Act.
(4)An eligible Judge has, in relation to the performance or exercise of a
function or power conferred on an eligible Judge by this Act, the same
protection and immunity as a Justice of the High Court has in relation
to proceedings in the High Court.
Nominated AAT members may issue Part VI warrants for use of
listening devices
6DA. (1) The Minister may, by writing, nominate a person who holds
one of the following appointments to the Administrative Appeals Tribunal
to issue warrants under Part VI:
(a) Deputy President;
(b) full-time senior member;
(c) part-time senior member;
(d) member.
(2) Despite subsection (1), the Minister must not nominate a person who
holds an appointment as a part-time senior member of a member of the
Tribunal unless the peson:
(a) is enrolled as a legal practitioner of the High Court, of another
federal court or of the Supreme Court of a State or of the
Australian Capital Territory; and
24
Telecommunications (Interception) Queensland
(b) has been so enrolled for not less than 5 years.
(3) A nomination ceases to have effect if:
(a) the nominated AAT member ceases to hold an appointment of a
kind set out in subsection (1); or
(b) the Minister, by writing, withdraws the nomination.
(4) A nominated AAT member has, in performing a function of or
connected with, issuing a warrant under Part VI, the same protection and
immunity as a Justice of the High Court has in relation to proceedings in the
High Court.
Lawfully obtained information
6E. (1) Subject to subsection (2), a reference in this Act to lawfully
obtained information is a reference to information obtained (whether before
or after the commencement of this section) by intercepting, otherwise than
in contravention of subsection 7(1), a communication passing over a
telecommunications system.
(2) A reference in this Act to lawfully obtained information that was
originally obtained by an agency, or by an eligible authority of a State, is a
reference to:
(a) information obtained, whether before or after the commencement
of this section, by intercepting a telecommunication under a
warrant issued to the agency or authority; or
(b) information communicated to the agency or authority in
accordance with section 65A.
Designated warrant information
6EA. A reference in this Act to designated warrant information is a
reference to:
(a) information about any of the following:
(i) an application for a warrant;
(ii) the issue of a warrant;
(iii) the existence or non-existence of a warrant;
25
Telecommunications (Interception) Queensland
(iv) the expiry of a warrant; or
(b) any information that is likely to enable the identification of:
(i) the telecommunications service to which a warrant relates; or
(ii) a person specified in a warrant as a person using or likely to
use the telecommunications service to which the warrant
relates.
Relevant proceeding
6L. (1) A reference in this Act, in relation to an agency, or an eligible
authority of a State, to a relevant proceeding is, in the case of the Australian
federal Police or a Police Force of a State, a reference to:
(a) a proceeding by way of a prosecution for a prescribed offence that
is an offence against a law of the Commonwealth, or of that state,
as the case may be;
(b) a proceeding under the law of the Commonwealth, or of that
state, as the case may be, for the confiscation or forfeiture of
property, or for the imposition of a pecuniary penalty, in
connection with the commission of a prescribed offence;
(c) a proceeding for the taking of evidence as mentioned in paragraph
5B(c), in so far as the proceeding relates to:
(i) a prescribed offence; or
(ii) a prescribed offence that is an offence against a law of that
State;
as the case may be;
(d) a proceeding for the extradition of a person as mentioned in
paragraph 5B(d), in so far as the proceeding related to a
prescribed offence against a law of the Commonwealth, or of that
State, as the case may be;
(e) a police disciplinary proceeding that is a proceeding against a
member of the Australian federal Police, or of that Police Force,
as the case may be; or
(f) any other proceeding (not being a proceeding by way of a
prosecution for an offence) in so far as it relates to alleged
26
Telecommunications (Interception) Queensland
misbehaviour, or alleged improper conduct, of an officer of the
Commonwealth, or of that State, as the case may be.
(2) A reference in this Act, in relation to an agency, or an eligible
authority of a State, to a relevant proceeding is:
(a) ...
(b) ...
(c) in the case of the Criminal Justice commission--a reference to:
(i) a proceeding by way of a prosecution for a prescribed
offence that is an offence against the law of Queensland and
to which a prescribed investigation relates or related; or
(ii) a proceeding under a law of Queensland for the confiscation
or forfeiture of property, or for the imposition of a pecuniary
penalty, in connection with the commission of a prescribed
offence.
Proceeding for confiscation or forfeiture or for pecuniary penaly
6K. A reference in this Act to a proceeding, or to a proceeding under a
law of the Commonwealth, for the confiscation or forfeiture of property, or
for the imposition of a pecuniary penalty, in connection with the
commission of a prescribed offence includes a reference to:
(a) ...
(b) ...
(c) a proceeding by way of an application for a restraining order, or
an order that is ancillary to a restraining order, under any of the
following:
(i) the Proceeds of Crime Act 1987;
(ii) ...
(iii) ...
(iv) the Crimes (Confiscation of Profits) Act 1989 of
Queensland;
27
Telecommunications (Interception) Queensland
(v) ...
(vi) ...
(vii) ...
(viii)...
(ix) ...
(x) ...
Terminating the appointment of an officer
6M. A reference in this Act to terminating, because of misbehaviour or
improper conduct, the appointment of an officer of the Commonwealth or a
State includes a reference to removing the officer from office on the ground
of misbehaviour or improper conduct.
PART II--INTERCEPTION OF
TELECOMMUNICATIONS
Telecommunications not to be intercepted
7. (1) A person shall not:
(a) intercept;
(b) authorize, suffer or permit another person to intercept; or
(c) do any act or thing that will enable him or another person to
intercept;
a communication passing over a telecommunications system.
(2) Subsection (1) does not apply to or in relation to:
(a) ...
(aa) ...
(ab) ...
(ac) ...
28
Telecommunications (Interception) Queensland
(b) the interception of a communication under a warrant; or
(c) ...
(2A)...
(3)...
(4) Subsection (1) does not apply to, or in relation to, an act done by an
officer of an agency in relation to a communication if the following
conditions are satisfied:
(a) the officer or another officer of the agency is a party to the
communication; and
(b) there are reasonable grounds for suspecting that another party to
the communication has:
(i) done an act that has resulted, or may result, in loss of life or
the infliction of serious personal injury; or
(ii) threatened to kill or seriously injure another person or to
cause serious damage to property; or
(iii) threatened to take his or her own life or to do an act that
would or may endanger his or her own life or create a
serious threat to his or her health or safety; and
(c) because of the urgency of the need for the act to be done, it is not
reasonably practicable for an application for a Part VI warrant to
be made.
(5) Subsection (1) does not apply to, or in relation to, an act done by an
officer of an agency in relation to a communication if the following
conditions are satisfied:
(a) the person to whom the communication is directed has consented
to the doing of the act; and
(b) there are reasonable grounds for believing that that person is
likely to receive a communication from a person who has:
(i) done an act that has resulted, or may result, in loss of life or
the infliction of serious personal injury; or
(ii) threatened to kill or seriously injure another person or to
cause serious damage to property; or
29
Telecommunications (Interception) Queensland
(iii) threatened to take his or her own life or to do an act that
would or may endanger his or her own life or create a
serious threat to his or her health or safety; and
(c) because of the urgency of the need for the act to be done, it is not
reasonably practicable for an application for a Part VI warrant to
be made.
(6) As soon as practicable after the doing of an act in relation to a
communication under the provisions of subsection (4) or (5), an officer of
the agency which is concerned with the communication shall cause an
application for a Part VI warrant to be made in relation to the matter.
(6A) Subsection (6) does not apply if action has been taken under
subsection (4) or (5) to intercept a communication, or cause it to be
intercepted, and the action has ceased before it is practicable for an
application for a Part VI warrant to be made.
(7) Where after considering an application made in relation to a matter
arising under subsections (4) or (5) and (6) a Judge or nominated AAT
member does not issue a warrant in relation to the application, the chief
officer of the agency concerned shall ensure that no further action is taken
by the agency to intercept the communication or to cause it to be intercepted.
(8) Subsections (4), (5), (6) and (7) only apply where the agency
concerned is:
(a) the Australian federal Police; or
(b) the Police Force of a State.
(9) If, apart from this subsection, the doing of an act referred to in
subparagraph 4(b)(ii) or (iii) or 5(b)(ii) or (iii) would not constitute a class 1
offence or a class 2 offence in a particular case, it is to be taken to constitute
a class 2 offence.
(10) Subsection (9) has effect only to the extent necessary:
(a) to enable an application to be made for the purposes of subsection
(6); and
(b) to enable a decision to be made on such an application and, if a
Judge so decides, a Part VI warrant to be issued; and
(c) to enable this Act to operate in relation to a Part VI warrant issued
30
Telecommunications (Interception) Queensland
on such an application.
(11) Nothing in this section limits the operation of subsection 6(2).
PART V--EMERGENCY REQUESTS AUTHORIZING
OFFICERS OF THE CORPORATION TO
INTERCEPT TELECOMMUNICATIONS
Emergency requests
30. (1) Where:
(a) a person is a party to a communication passing over a
telecommunications system;
(b) as a result of information conveyed by another party to the
communication (in this section referred to as the "caller") and of
any other matters, the first-mentioned person forms the honest
belief that either of the following emergencies exist:
(i) another person (whether or not the caller) is dying, is being
seriously injured or has been seriously injured;
(ii) another person (whether or not the caller) is likely to die or
be seriously injured; and
(c) the first-mentioned person does not know the location of the
caller;
the first-mentioned person may:
(d) in the case where the first-mentioned person:
(i) is a member of a police force; and
(ii) is of the opinion that tracing the location of the caller is likely
to be of assistance in dealing with the emergency;
request, or cause another member of the police force to request,
an employee of a carrier to intercept, or to cause other employees
of the carrier to intercept, the communication for the purposes of
tracing the location of the caller; or
31
Telecommunications (Interception) Queensland
(e) in a case where the first-mentioned person is not a member of a
police force--inform, or cause another person to inform, a
member of a police force of the matters referred to in paragraphs
(a), (b) and (c).
(2) Where a member of a police force is so informed, the member may,
if the member is of the opinion that tracing the location of the caller is likely
to be of assistance in dealing with the emergency; request an employee of a
carrier to intercept, or to cause other employees of the carrier to intercept,
the communication for the purposes of tracing the location of the caller.
(3) Where, pursuant to a request made, or purporting to be made, by a
member of a police force under subsection (1) or (2), an employee of a
carrier intercepts a communication passing over a telecommunications
system for the purpose of tracing the location of the caller, the employee
shall:
(a) communicate, or cause another employee of the carrier to
communicate, the location of the caller to the person who made
the request or to any other member of the police force; and
(b) communicate particulars of the interception to the Managing
Director of the carrier.
(4) As soon as practicable after making to an employee of a carrier a
request under, or purporting to be under, subsection (1) or (2), a member of
a police force shall give, to the Managing Director of the carrier a written
confirmation of the request that sets out the information given by the
first-mentioned member to that employee in connection with the request.
PART VI--WARRANTS AUTHORISING THE
AUSTRALIAN FEDERAL POLICE TO INTERCEPT
TELECOMMUNICATIONS
Division 1--Telecommunications Interception Division of the Australian
Federal Police
32
Telecommunications (Interception) Queensland
Constitution
32. The Commissioner of Police shall constitute, within the Australian
Federal Police, a Division to be known as the Telecommunications
Interception Division.
Functions
33. The functions of the Telecommunications Interception Division are:
(a) to take action to enable warrants issued to agencies other than the
Australian Federal Police to be executed; and
(b) such other functions as are assigned to the Division in writing by
the Commissioner of Police.
Division 2--Declaration of State Law Enforcement Authorities Agencies
Declaration of an eligible authority of a State as an agency
34. (1) Subject to section 35, the Minister may, at the request of the
Premier of a State, declare an eligible authority of that State to be an agency
for the purposes of this Act.
35. (1) The Minister shall not make a declaration under section 34 in
relation to an eligible authority of a State unless he or she is satisfied that the
law (in this subsection called the "relevant law") of that State makes
satisfactory provision:
(a) imposing on the chief officer of the eligible authority
requirements corresponding to the requirements that subsections
80 (2) and 81(2) and (3) impose on the Chairman of the
authority;
(b) requiring the chief officer of the eligible authority to give to a
specified Minister (in this subsection called the "responsible
Minister") of that State a copy of each warrant issued to the
eligible authority, and each instrument under section 52 or 57
revoking such a warrant, as soon as practicable after the issue or
revocation of the warrant;
(c) requiring the chief officer of the eligible authority to give to the
33
Telecommunications (Interception) Queensland
responsible Minister, within 3 months after a warrant issued to
the eligible authority ceases to be in force, a written report about:
(i) the use made by the eligible authority of information
obtained by interceptions under the warrant; and
(ii) the communication of such information to persons other
than officers of the eligible authority;
(d) requiring the chief officer of the eligible authority to give to the
responsible Minister as soon as practicable, and in any event
within 3 months, after each 30 June, a written report that sets out
such information as:
(i) Division 2 of Part IX requires to be set out in the Minister's
report under that Division relating to the year ending on that
30 June; and
(ii) can be derived from the eligible authority's records;
(e) requiring the responsible Minister to give to the Minister, as soon
as practicable after;
(i) a copy of a warrant issued to the eligible authority;
(ii) a copy of an instrument revoking such a warrant; or
(iii) a report of a kind referred to in paragraph (c) or (d);
(f) requiring the chief officer of the eligible authority to cause a
restricted record (whether made before or after the
commencement of the section) that is in the possession of the
eligible authority to be kept, except when it is being otherwise
dealt with in accordance with this Act and the relevant law, in a
secure place where it is not accessible to persons other than
persons who are entitled so to deal with it;
(g) requiring the chief officer of the eligible authority to cause a
restricted record of a kind referred to in paragraph (f) to be
destroyed forthwith where the chief officer is satisfied that the
restricted record is not likely to be required for a permitted
purpose in relation to the eligible authority, other than a purpose
connected with an inspection of the kind referred to in paragraph
(h) or with a report on such an inspection;
(h) requiring regular inspections of the eligible authority's records, for
34
Telecommunications (Interception) Queensland
the purpose of ascertaining the extent of compliance by the
officers of the eligible authority with the requirements referred to
in paragraphs (a), (f) and (g) of this subsection, to be made by an
authority of that State that is independent of the eligible authority
and on which sufficient authority to make a proper inspection of
those records for that purpose;
(i) requiring an authority of that State that has made an inspection of
the eligible authority's interception records for the purpose
referred to in paragraph (h) to report in writing to the responsible
Minister about the results of the inspection;
(j) empowering an authority of that State that, as a result of
inspecting the eligible authority's records for the purpose referred
to in paragraph (h), is of the opinion that an officer of the eligible
authority has contravened:
(i) a provision of this Act; or
(ii) a requirement referred to in paragraph (b) or (c);
(k) to include in the report on the inspection a report on the
contravention; and
(m) requiring the responsible Minister to give to the Minister, as soon
as practicable after a report on an inspection of the kind referred to
in paragraph (j) is given to the responsible Minister, a copy of the
report.
(2) The Minister shall not make a declaration under section 34 in relation
to an eligible authority of a State unless the Minister is satisfied that that
State has entered into an agreement:
(a) to pay all expenses connected with the issue of warrants to the
authority;
(b) to make payments to the Australian Federal Police in respect of
all expenses respectively incurred, or to be incurred, by them in
connection with:
(i) enabling warrants issued to the authority to be executed; and
(ii) the execution of such warrants; and
(c) to make payments to the Australian Federal Police in respect of
35
Telecommunications (Interception) Queensland
an appropriate proportion of the expenses incurred, or to be
incurred, in connection with establishing the Telecommunications
Interception Division.
Revocation of declaration
37. (1) If requested by the Premier of a State to revoke a declaration in
force under section 34 in relation to an eligible authority of that State, the
Minister shall, by notice in writing published in the Gazette, revoke the
declaration.
(2) Subject to subsection (1), the Minister may, by notice in writing
published in the Gazette, revoke a declaration in force under section 34 in
relation to an eligible authority of a State if, and only if, the Minister is
satisfied that:
(a) the law of that State no longer makes satisfactory provisions in
relation to the authority as mentioned in subsection 35(1);
(b) the extent of compliance with a requirement of a law of that State,
being a requirement of a kind referred to in subsection 35(1), has
been unsatisfactory in so far as the requirement relates to the
authority;
(c) no agreement of the kind referred to in subsection 35(2), being an
agreement entered into by that State that relates to the authority, is
in force;
(d) the extent of compliance by that State with the terms of an
agreement of the kind referred to in subsection 35(2), being an
agreement entered into by that State, has been unsatisfactory in so
far as the agreement relates to the authority; or
(e) the extent of compliance by the chief officer of the authority, or
by officer of the authority, with this Act has been unsatisfactory.
Effect of revocation
38.Where a declaration under section 34 in relation to an eligible
authority of a State is revoked, this Act:
(a) continues to apply in relation to a warrant that was issued to the
authority before the revocation; and
36
Telecommunications (Interception) Queensland
(b) so applies at a particular time as if the authority were an agency at
that time.
Division 3--Applications for Warrants
Agency may apply for warrant
39. (1) An agency may apply to an eligible Judge or nominated AAT
member for a warrant in respect of a telecommunications service.
(2) An application for a warrant shall be made on an agency's behalf by :
(a) ...
(b) ...
(c) in the case of the Police Force of a State--an officer of that Police
Force; or
(d) ...
(e) ...
(f) in the case of the Criminal Justice Commission:
(i) a Commissioner of the Commission; or
(ii) an officer of the Police Force of Queensland who is an
officer of the Commission.
Form of application
40. (1) Subject to subsection (2), an application for a warrant shall be in
writing.
(2) If the person making an application for a warrant on an agency's
behalf:
(a) is the chief officer of the agency or a person in relation to whom
an authorisation by the chief officer is in force under subsection
(3); and
(b) thinks it necessary, because of urgent circumstances, to make the
application by telephone;
37
Telecommunications (Interception) Queensland
the person may make the application by telephone.
(3) The chief officer of an agency may authorise in writing, for the
purposes of subsection (2), persons who, or classes of persons who, are
entitled under section 39 to make applications on the agency's behalf.
Contents of application
41. A written application by an agency for a warrant shall set out:
(a) the name of the agency; and
(b) the name of the person making the application on the agency's
behalf.
Affidavit to accompany written application
42. (1) A written application by an agency for a warrant shall be
accompanied by an affidavit complying with this section.
(2) The affidavit shall set out the facts and other grounds on which the
application is based.
(3) The affidavit shall specify the period for which it is requested that the
warrant be in force and shall state why it is considered necessary for the
warrant to be in force for that period.
(4) The affidavit shall set out, in relation to the service, and in relation to
each person to whom the application relates, the following information, so
far as it can be derived from the agency's records:
(a) the number of previous applications (if any) for warrants that the
agency has made and that related to the service or to that person,
as the case may be;
(b) the number of warrants (if any) previously issued on such
applications; and
(c) particulars of the use made by the agency of information obtained
by interceptions under such warrants.
(5) Notwithstanding subsection (1), a written application may be
accompanied by 2 or more affidavits that together set out each matter that,
but for this subsection, this section would have required an affidavit
accompanying the application to set out, specify or state.
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Telecommunications (Interception) Queensland
Information to be given on telephone application
43. The information given to a Judge or nominated AAT member in
connection with a telephone application to the Judge or nominated AAT
member:
(a) shall include particulars of the urgent circumstances because of
which the person making the application on the agency's behalf
thinks it necessary to make the application by telephone;
(b) shall include each matter that, if the application had been made in
writing, section 41, 42, or 48 would have required the application,
or an affidavit accompanying it, to set out, specify or state; and
(c) shall be given orally or in writing, as the Judge or nominated
AAT member directs.
Giving further information to Judge or nominated AAT member
44. (1) A Judge or nominated AAT member may require further
information to be given in connection with an application to the Judge or
nominated AAT member for a warrant.
(2) The further information:
(a) shall be given on oath in the application was made in writing; and
(b) shall be given orally or otherwise, as the Judge or nominated
AAT member directs.
Division 4--Warrants
Issue of warrant in relation to class 1 offence
45. Where an agency applies to an eligible Judge or nominated AAT
member for a warrant in respect of a telecommunications service and the
Judge or nominated AAT member is satisfied, on the basis of the
information given to the Judge or nominated AAT member under this Part
in connection with the application, that:
(a) Division 3 has been complied with in relation to the application;
39
Telecommunications (Interception) Queensland
(b) in the case of a telephone application--because of urgent
circumstances, it was necessary to make the application by
telephone;
(c) there are reasonable grounds for suspecting that a particular
person is using, or is likely to use, the service;
(d) information that would be likely to be obtained by intercepting
under a warrant communications made to or from the service
would be likely to assist in connection with the investigation by
the agency of a class 1 offence, or class 1 offences, in which the
person is involved; and
(e) having regard to:
(i) the extent to which methods of investigating the offence or
offences that do not involve so intercepting communications
have been used by, or are available to, the agency;
(ii) how much of the information referred to in paragraph (d)
would be likely to be obtained by such methods; and
(iii) how much the use of such methods would be likely to
prejudice the investigation by the agency of the offence or
offences, whether because of delay in obtaining some or all
of that information or for any other reason;
some or all of that information cannot appropriately be obtained
by such methods;
the Judge or nominated AAT member may, in his or her discretion, issue a
warrant authorising interceptions of communications made to or from the
service.
Issue of warrant in relation to class 2 offence
46. (1) Where an agency applies to an eligible Judge or nominated AAT
member for a warrant in respect of a telecommunications service and the
Judge or nominated AAT member is satisfied, on the basis of the
information given to the Judge or nominated AAT member under this Part
in connection with the application, that:
(a) Division 3 has been complied with in relation to the application;
(b) in the case of a telephone application--because of urgent
40
Telecommunications (Interception) Queensland
circumstances, it was necessary to make the application by
telephone;
(c) there are reasonable grounds for suspecting that a particular
person is using, or is likely to use, the service;
(d) information that would be likely to be obtained by intercepting
under a warrant communications made to or from the service
would be likely to assist in connection with the investigation by
the agency of a class 2 offence, or class 2 offences, in which the
person is involved; and
(e) having regard to the matters referred to in subsection (2), and to
no other matters, the Judge or nominated AAT member should
issue a warrant authorising such communications to be
intercepted;
the Judge or nominated AAT member may, in his or her discretion, issue
such a warrant.
(2) The matters to which the Judge or nominated AAT member shall
have regard are:
(a) how much the privacy of any person or persons would be likely
to be interfered with by intercepting under a warrant
communications made to or from the service referred to in
subsection(1);
(b) the gravity of the conduct constituting the offence or offences
being investigated;
(c) how much the information referred to in paragraph (1)(d) would
be likely to assist in connection with the investigation by the
agency of the offence or offences;
(d) to what extent methods of investigating the offence or offences
that do not involve so intercepting communications have been
used by, or are available, to the agency;
(e) how much the use of such methods would be likely to assist in
connection with the investigation by the agency of the offence or
offences; and
(f) how much the use of such methods would be likely to prejudice
the investigation by the agency of the offence or offences,
whether because of delay or for any other reason.
41
Telecommunications (Interception) Queensland
Limit on authority conferred by warrant under section 45 or 46
47. A warrant under section 45 or 46 does not authorise communications
to be intercepted while they are passing over a telecommunications system
operated by a carrier unless:
(a) notification of the issue of the warrant has been received by or on
behalf of the Managing Director of the carrier under subsection
60(1); and
(b) the interception takes place as a result of action taken by an
employee of the carrier, and by a member or staff member of the
Australian Federal Police, for the purpose of enabling the warrant
to be executed.
Issue of warrant for entry on premises
48. (1) An application for a warrant may include a request that the
warrant authorise entry on premises and shall, if it includes such a request,
specify the premises.
(2) Where a written application for a warrant includes a request that the
warrant authorise entry on premises, an affidavit accompanying the
application shall:
(a) state why it is considered necessary for the warrant to authorise
entry on those premises;
(b) set out the number of previous applications (if any) for warrants
that the agency has made and that requested authorisation for
entry on those premises; and
(c) set out the number of warrants (if any) previously issued on such
application.
(3) Where:
(a) an agency applies to an eligible Judge or nominated AAT
member for a warrant in respect of a telecommunications service;
(b) the application includes a request that the warrant authorise entry
on specified premises and the Judge or nominated AAT member
is satisfied that subsection (2) has been complied with in relation
to the application;
(c) section 45 or 46 empowers the Judge or nominated AAT
42
Telecommunications (Interception) Queensland
member to issue a warrant on the application; and
(d) the Judge or nominated AAT member is satisfied, on the basis of
the information given to the Judge or nominated AAT member
under this Part in connection with the application, that:
(i) for technical reasons connected with the nature or operation
of the service or of a telecommunications system of which
the service forms part; or
(ii) where, if the warrant were issued under section 45 or 46,
communications to or from the telecommunications service
would be intercepted while passing over a
telecommunications system operated by a carrier--execution
of the warrant as a result of action taken by employees of
that carrier might jeopardise security of the investigation by
the agency of a serious offence in which a person to whom
the application relates is involved;
it would be impracticable or inappropriate to intercept
communications under a warrant in respect of the service
otherwise than by use of equipment or a line installed on those
premises;
subsections (4) and (5) apply.
(4) The Judge or nominated AAT member may issue a warrant
authorising:
(a) entry on those premises in order to install, maintain, use or
recover equipment or a line used in the interception of
communications being made to or from the service; and
(b) interceptions of such communications by the use of that
equipment or line.
(5) If the Judge or nominated AAT member issues such a warrant:
(a) the warrant shall state whether entry is authorised to be made at
any time of the day or night or only during specified hours; and
(b) the warrant may provide that entry may be made without
permission first being sought or demand first being made, and
authorise measures that the Judge or nominated AAT member is
satisfied are necessary and reasonable for that purpose.
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Telecommunications (Interception) Queensland
Form and content of warrant
49. (1) A warrant shall be in accordance with the prescribed form and
shall be signed by the Judge or nominated AAT member who issues it.
(2) A warrant may specify conditions or restrictions relating to
interceptions under the warrant.
(3) A warrant shall specify, as the period for which it is to be in force, a
period of up to 90 days.
(4) A Judge or nominated AAT member shall not vary a warrant by
extending the period for which it is to be in force.
(5) Neither of subsections (3) and (4) prevents the issue of a further
warrant in respect of a service in respect of which a warrant has, or warrants
have, previously been issued.
(6) In subsection (5), "warrant" means a warrant issued under this Act.
(7) A warrant shall set out short particulars of each serious offence in
relation to which the Judge or nominated AAT member issuing the warrant
was satisfied, on the application for the warrant, as mentioned in paragraph
45 (d) or 46 (1) (d), as the case may be.
Issue of warrant on telephone application
50. (1) As soon as practicable after completing and signing a warrant
issued on a telephone application, a Judge or nominated AAT member
shall:
(a) inform the person who made the application on the agency's
behalf of:
(i) the terms of the warrant; and
(ii) the day on which, and the time at which, the warrant was
signed; and
(b) give the warrant to that person.
(2) A Judge or nominated AAT member who issues a warrant on a
telephone application shall keep a copy of the warrant.
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Telecommunications (Interception) Queensland
Action by agency after warrant issued on telephone application
51. (1) A person (in this section called the "applicant") who makes a
telephone application on an agency's behalf shall comply with this section
within one day after the day on which a warrant is issued on the application.
(2) The applicant shall cause each person who gave information to the
Judge or nominated AAT member in connection with the application to
swear an affidavit setting out the information so given by the person.
(3) The applicant shall give to the Judge or nominated AAT member:
(a) the affidavit or affidavits; and
(b) unless the applicant is the chief officer of the agency--a copy of
an authorisation by the chief officer under subsection 40 (3) that
was in force in relation to the applicant when the application was
made.
Judge or nominated AAT member may revoke warrant where section
51 contravened
52. (1) Where a Judge or nominated AAT member who issued a warrant
on a telephone application is satisfied that section 51 has not been complied
with in relation to the warrant, he or she may, by writing signed by him or
her, revoke the warrant and shall, if he or she does so:
(a) forthwith inform:
(i) the person who made the application on the agency's behalf;
or
(ii) the chief officer of the agency;
of the revocation; and
(b) give the instrument of revocation to that person, or to the chief
officer, as soon as practicable.
(2) Where a warrant issued to an agency other than the Australian
Federal Police is revoked under subsection (1), the chief officer of the
agency shall cause:
(a) the Commissioner of Police to be informed forthwith of the
revocation; and
(b) a copy of the instrument of revocation to be given as soon as
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Telecommunications (Interception) Queensland
practicable to the Commissioner of Police.
Notification to Australian Federal Police of issue of warrants to other
agencies
53. (1) Where a warrant is issued to an agency other than the Australian
Federal Police, the chief officer of the agency:
(a) shall cause the Commissioner of Police to be informed forthwith
of the issue of the warrant; and
(b) in the case of a warrant issued on a telephone application--may
cause the Commissioner of Police to be notified in writing of the
issue of the warrant; and
(c) in the case of a warrant issued under section 48--must cause the
warrant to be given to the Commissioner of Police as soon as
practicable; and
(d) in the case of a warrant issued under section 45 or 46--must
cause a copy of the warrant to be given to the Commissioner of
Police as soon as practicable.
(2) A notification under paragraph (1)(b) of the issue of a warrant shall
set out:
(a) the name of the Judge or nominated AAT member who issued
the warrant;
(b) the date on which, and the time at which, the Judge or nominated
AAT member signed the warrant; and
(c) the terms of the warrant as indicated by the Judge or nominated
AAT member under section 50.
Entry into force of certain warrants
54. (1) A warrant under section 45 or 46 issued to an agency other than
the Australian Federal Police does not come into force until:
(a) in any case, a copy of the warrant; or
(b) in the case of a warrant issued on a telephone application, a
notification under paragraph 53(1)(b) of the issue of the warrant;
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Telecommunications (Interception) Queensland
is received by or on behalf of the Commissioner of Police.
(2) A warrant under section 48 issued to an agency other than the
Australian Federal Police does not come into force until:
(a) in any case, the warrant; or
(b) in the case of a warrant issued on a telephone application, a
notification under paragraph 53(1)(b) of the issue of the warrant;
is received by or on behalf of the Commissioner of Police.
Exercise of authority conferred by warrant
55. (1) The authority conferred by a warrant issued to an agency under
section 45 or 46 may only be exercised by an officer or staff member of the
agency in relation to who an approval under subsection (3) is in force in
relation to the warrant.
(2) The authority conferred by a warrant issued under section 48 may
only be exercised by a member of the Australian Federal Police in relation
to whom an approval under subsection (3) is in force in relation to the
warrant.
(3) The chief officer of an agency, or an officer of an agency in relation to
whom an appointment under subsection (4) is in force, may approve in
writing officer or staff members of the agency or classes of officers or staff
members of the agency, to exercise the authority conferred by warrants or
classes of warrants.
(4) The chief officer of an agency may appoint in writing an officer of the
agency to be an approving office for the purposes of subsection (3).
(5) In spite of subsections (1) and (2), a designated officer may provide
technical assistance to an officer or staff member of an agency who is
exercising the authority conferred by a warrant.
(6) A reference in subsection (5) to the provision of technical assistance
includes a reference to:
(a) the doing of any act involved in the interception of
communications under a warrant, to the extent that the act is
incidental to the doing of an act referred to in paragraph (b); and
(b) the doing of any act in connection with:
(i) the installation of equipment for the purposes of intercepting
47
Telecommunications (Interception) Queensland
a communication in accordance with a warrant; or
(ii) the maintenance, testing or use of such equipment; or
(iii) the removal or such equipment.
(7) The chief officer of an agency or a person who is an approving
officer for an agency under subsection (4) may, in writing, declare persons
to be designated officers for the purposes of subsection (5).
Revocation of warrant by chief officer of other agency
57. (1) Where, before a warrant issued to an agency other than the
Australian Federal Police ceases to be in force, the chief officer of the
agency is satisfied that the grounds on which the warrant was issued have
ceased to exist, he or she shall:
(a) cause the Commissioner of Police to be informed forthwith that
the chief officer proposes to revoke the warrant; and
(b) by writing signed by him or her, revoke the warrant.
(2)At any time before a warrant issued to an agency other than the
Australian Federal Police ceases to be in force, the chief officer of the
agency may, by writing signed by him or her, revoke the warrant after
causing the Commissioner of Police to be informed of the proposed
revocation.
(3)A chief officer of an agency who revokes a warrant shall cause:
(a) the Commissioner of Police to be informed forthwith of the
revocation; and
(b) a copy of the instrument of revocation to be given as soon as
practicable to the Commissioner of Police.
(4) The chief officer of an agency may delegate his or her power under
subsection (2) to a certifying officer of the agency.
Discontinuance of interceptions under certain warrants
58. Where:
(a) a warrant issued to the Australian Federal Police is revoked under
subsection 52(1); or
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Telecommunications (Interception) Queensland
(b) under subsection 52(2) or 57(1) or (2), the Commissioner of
Police is informed of the revocation or proposed revocation of a
warrant;
the Commissioner of Police shall forthwith take such steps as are
necessary to ensure that interceptions of communications under the
warrant are discontinued.
When revocation of certain warrants takes effect
59. A warrant revoked under subsection 52(1) or 57(1) or (2) does not
cease to be in force until the instrument of revocation is received by or on
behalf of the cop or the warrant expires, whichever happens sooner.
Notification to Managing Director of carrier of issue or revocation of
certain warrants
60. (1) Where:
(a) a warrant is issued to an agency; and
(b) it is proposed, under the warrant, to intercept communications to
chief officer from a telecommunications service while they are
passing over a telecommunications system operated by a carrier;
the chief officer of the agency shall cause;
(c) the Managing Director of that carrier to be informed forthwith of
the issue of the warrant; and
(d) a copy of the warrant, certified in writing by a certifying officer of
the agency to be a true copy of the warrant, to be given as soon as
practicable to the Managing Director of the carrier.
(2) Where:
(a) the chief officer of an agency causes the Commissioner of Police
to be notified under paragraph 53(1)(b) of the issue of a warrant
to the agency; and
(b) under subsection (1) of this section, the chief officer has caused
the Managing Director of a carrier to be informed of the issue of
the warrant;
the chief officer shall cause a copy of the notification to be given as
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Telecommunications (Interception) Queensland
soon as practicable to the Managing Director of that carrier.
(3) Where:
(a) the Managing Director of a carrier has been informed, under
subsection (1), of the issue of a warrant; and
(b) the warrant is revoked;
the chief officer of the agency to which the warrant was issued shall
cause:
(c) the Managing Director of that carrier to be informed forthwith of
the revocation; and
(d) a copy of the instrument of revocation, certified in writing by a
certifying officer of the agency to be a true copy of the
instrument, to be given as soon as practicable to the Managing
Director of that carrier.
Evidentiary certificates
61. (1) The Managing Director or secretary of a carrier may issue a
written certificate signed by him or her setting out such facts as he or she
considers relevant with respect to acts or things done by, or in relation to,
employees of the carrier in order to enable a warrant to be executed.
(2) A document purporting to be a certificate issued under subsection (1)
and purporting to be signed by the Managing Director or secretary of a
carrier shall be received in evidence in an exempt proceeding without further
proof and is, in an exempt proceeding, conclusive evidence of the matters
stated in the document.
(3) A certifying officer of the Australian federal Police may issue a
written certificate signed by him or her setting out such facts as he or she
considers relevant with respect to acts or things done in order to enable, or
in connection with enabling, a warrant issued under section 45 or 46 to
another agency to be executed.
(4) A certifying officer of an agency may issue a written certificate
signed by him or her setting out such facts as he or she considers relevant
with respect to:
(a) anything done by an officer or staff member of the agency in
connection with the execution of a warrant issued to the agency
50
Telecommunications (Interception) Queensland
under section 45, 46 or 48; or
(b) anything done by an officer or staff member of the agency in
connection with:
(i) the communication by a person to another person of; or
(ii) the making use of; or
(iii) the making of a record of; or
(iv) the custody of a record of; or
(v) the giving in evidence of;
information obtained by the execution of such a warrant.
(5)A document purporting to be a certificate issued under subsection (3)
or (4) by a certifying officer of an agency and to be signed by him or her is
to be received in evidence in an exempt proceeding without further proof
and is, in an exempt proceeding, prima facie evidence of the matters stated
in the document.
(6) In subsections (1) and (2), a reference to the Managing Director or
secretary of a carrier includes a reference to the Managing Director or
secretary of a body corporate of which the carrier is a subsidiary.
(7) For the purposes of this section, the question whether a body
corporate is a subsidiary of another body corporate is to be determined in
the same manner as the question is determined under the Corporations law.
Certified copy of warrant
61A. A document certified in writing by a certifying officer of an agency
to be a true copy of a warrant shall be received in evidence in an exempt
proceeding as if it were the original warrant.
PART VII--DEALING WITH INTERCEPTED
INFORMATION
51
Telecommunications (Interception) Queensland
Application of Part
62. Except so far as the contrary intention appears, this Part applies in
relation to:
(a) information, whether obtained before or after the commencement
of this Part;
(b) an interception, whether before or after that commencement, of a
communication; and
(c) a proceeding, whether begun before or after that commencement.
No dealing in intercepted information or designated warrant
information
63. (1) Subject to this Part, a person shall not, after the commencement
of this Part:
(a) communicate to another person, make use of, or make a record
of; or
(b) give evidence in a proceeding;
lawfully obtained information or information obtained by intercepting
a communication in contravention of subsection 7(1).
(2) Subject to this Part, a person must not, after the commencement of
this subsection:
(a) communicate designated warrant information to another person;
or
(b) make use of designated warrant information; or
(c) make a record of designated warrant information; or
(d) give designated warrant information in evidence in a proceeding.
Dealing in designated warrant information for the purposes of Part
III, VI, VIII or IX
63AA. A person may, for the purposes of Part III, VI, VIII or IX:
(a) communicate designated warrant information to another person;
or
52
Telecommunications (Interception) Queensland
(b) make use of designated warrant information; or
(c) make a record of designated warrant information; or
(d) give designated warrant information in evidence in a proceeding.
Dealing in connection with existing proceeding
63A. (1) A person may:
(a) for a purpose connected with a proceeding begun before the
commencement of this Part, or for 2 or more such purposes, and
for no other purpose, communicate to another person, make use
of, or make a record of: or
(b) give in evidence in such a proceeding; information:
(c) obtained by intercepting a communication before that
commencement, whether or not in contravention of subsection
7(1); or
(d) obtained, before that commencement, by virtue of a warrant
issued under section 11A.
(2) Nothing in subsection (1) makes admissible in evidence in any
proceedings information, obtained by virtue of a warrant that was defective,
that would not have been admissible in those proceedings if that subsection
had not been enacted.
(3) For the purposes of this section, a proceeding by way of a
prosecution of a person on indictment for an offence shall be deemed to
have begun before the commencement of this Part if a proceeding with a
view to the committal of the person for trial for the offence began before
that commencement.
(4) For the purposes of this section, a proceeding by way of an appeal
from, or otherwise arising out of, another proceeding shall be deemed to
have begun before the commencement of this Part if the other proceeding
began, or by virtue of any other application or applications of this section is
deemed to have begun, before that commencement.
Employee of carrier may communicate information to agency
65A. An employee of a carrier may, for a purpose or purposes connected
with the investigation by an agency of a serious offence, and for no other
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Telecommunications (Interception) Queensland
purpose, communicate to an officer of the agency the following:
(a) lawfully obtained information other than section 11A
information;
(b) designated warrant information.
Interceptor may communicate to agency to which warrant was issued
66. (1) A person who has intercepted a communication under a warrant
issued to an agency may communicate information obtained by the
interception to:
(a) the officer of the agency who applied for the warrant on the
agency's behalf; or
(b) an officer of the agency in relation to whom an authorisation
under subsection (2) by the chief officer of the agency is in force
in relation to the warrant.
(2) The chief officer of an agency may authorise in writing officers, or
classes of officers, of the agency to receive information obtained by
interceptions under warrants, or classes of warrants, issued to the agency.
Dealing for permitted purpose in relation to agency
67. An officer or staff member of an agency may, for a permitted
purpose, or permitted purposes, in relation to the agency, and for no other
purpose, communicate to another person, make use of, or make a record of
the following:
(a) lawfully obtained information other than section 11A
information;
(b) designated warrant information.
Chief officer may communicate information obtained by agency
68. The chief officer of an agency (in this section called the "originating
agency") may, personally, or by an officer of the originating agency
authorised by the chief officer, communicate lawfully obtained information
by the originating agency or designated warrant information:
(a) if the information relates, or appears to relate, to activities
54
Telecommunications (Interception) Queensland
prejudicial to security--to the Director-General of Security; and
(b) if the information relates, or appears to relate, to the commission
of a relevant offence in relation to another agency:
(i) if the other agency is the Australian Federal Police or the
Police Force of a State--to a member of the Australian
Federal Police or an officer of that Police Force, as the case
may be; or
(ii) in any other case--to the chief officer of the other agency;
and
(c) if the information relates, or appears to relate, to:
(i) the subject matter of a proceeding under a law of the
Commonwealth for the confiscation or forfeiture of
property, or for the imposition of a pecuniary penalty, in
connection with the commission of a prescribed offence;
(ii) an act or omission by a member of the Australian Federal
Police that may give rise to a proceeding against that
member, or to which a proceeding against that member
relates, being a police disciplinary proceeding; or
(iii) misbehaviour or improper conduct of an officer of the
Commonwealth;
and the originating agency is not the Australian Federal
Police--to the Commissioner of Police; and
(d) if the information relates, or appears to relate, to:
(i) the subject matter of a proceeding under a law of a State for
the confiscation or forfeiture of property, or for the
imposition of a pecuniary penalty, in connection with the
commission of a prescribed offence;
(ii) an act or omission by an officer of the Police Force of a
State that may give rise to a proceeding against that officer,
or to which a proceeding against that officer relates, being a
police disciplinary proceeding; or
(iii) misbehaviour or improper conduct of an officer of a State;
and the originating agency is not the Police Force of that State--to
the Commissioner of that Police Force; and
55
Telecommunications (Interception) Queensland
(e) if the information relates, or appears to relate, to:
(i) an act or omission by an officer of the Police Force of a
State that may give rise to an investigation by the Royal
Commission into the New South Wales Police Service; or
(ii) misbehaviour or improper conduct of an officer of a State
that may give rise to an investigation by the Royal
Commission into the New South Wales Police Service;
to the person constituting that Royal Commission.
State authority may ask not to receive information under section 68
69. (1) The chief officer of an eligible authority of a State in relation to
which no declaration is in force under section 34 may, by writing given to
the chief officer of another agency, request the other agency not to
communicate information under section 68 to the eligible authority.
(2) A request under subsection (1) remains in force until:
(a) the chief officer of the eligible authority revokes the request by
writing given to the chief officer of the other agency; or
(b) a declaration is made under section 34 in relation to the eligible
authority.
(3) Where a request under subsection (1) is in force, section 68 does not
permit an officer of the other agency to communicate information to an
officer of an eligible authority.
Communicating information obtained by interception under Part V
70. A member of a Police Force may, in the course of performing his or
her duties as such a member, communicate to another member of a police
force, or to any other person whose assistance may be required in dealing
with an emergency of a kind referred to in paragraph 30(1)(b), information
communicated (whether before or after the commencement of this section)
to the first-mentioned member in accordance with subsection 30(3) or this
section.
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Telecommunications (Interception) Queensland
Dealing with information where interception suspected to be unlawful
71. (1) Where a person suspects on reasonable grounds that information
(in this section called the "relevant information") obtained by intercepting
a communication may tend to establish that a prescribed offence (in this
section called a "suspected offence"), being:
(a) an offence against subsection 7(1) constituted by the interception,
or by authorising, suffering or permitting, or doing an act or thing
to enable, the interception;
(b) an offence against section 63 constituted by communicating to a
person, making use of, making a record of, or giving in evidence
in a proceeding, information obtained by the interception; or
(c) an ancillary offence relating to an offence of a kind referred to in
paragraph (a) or (b) of this subsection:
has been committed, the succeeding provisions of this section have
effect, whether or not the interception contravened section 7(1).
(2) The person may communicate the relevant information to:
(a) the Attorney-General;
(b) the Director of Public Prosecutions;
(c) the Commissioner of Police;
(d) the Chairman of the Authority.
(3) A person to whom the relevant information is communicated in
accordance with subsection (2) may, for a purpose connected with:
(a) an investigation of a suspected offence;
(b) the making by an authority, body or person of a decision whether
or not to begin a proceeding by way of a prosecution for a
suspected offence; or
(c) a proceeding by way of a prosecution for a suspected offence;
or for 2 or more such purposes, and for no other purpose,
communicate to another person, make use of, or make a record of,
some or all of the relevant information.
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Telecommunications (Interception) Queensland
Making record for purpose of permitted communication
72. A person who is permitted by section 63B, 65 or 65A, subsection
66(1), section 68 or subsection 71(2) to communicate particular information
to another person may, for the purpose of so communicating the
information in accordance with that section or subsection, make a record of
the information, or cause such a record to be made.
Further dealing by recipient of certain information
73. A person to whom information has, in accordance with section 63A,
subsection 63B(2), section 67, subsection 71(3) or this section, been
communicated for a purpose, or for one or more of those purposes, and for
no other purpose, communicate to another person, make use of, or make a
record of, that information.
Giving information in evidence in exempt proceeding
74. (1) A person may give lawfully obtained information (other than
section 11A information) in evidence in an exempt proceeding.
(2) For the purposes of applying subsection (1) in relation to
information, the question whether or not a communication was intercepted
in contravention of subsection 7(1) may be determined on the balance of
probabilities.
(3) A person may give designated warrant information in evidence in an
exempt proceeding.
Giving information in evidence where defect in connection with
warrant
75. (1) Where a communication has been intercepted in contravention of
subsection 7(1) but purportedly under a warrant (other than a warrant under
section 11A), a person may give information obtained by the interception in
evidence in an exempt proceeding, being a proceeding in a court or before a
tribunal, body, authority or person, if the court, tribunal, body, authority or
person, as the case may be, is satisfied that:
(a) but for an irregularity, the interception would not have constituted
a contravention of subsection 7(1); and
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Telecommunications (Interception) Queensland
(b)in all the circumstances, the irregularity should be disregarded.
(2) A reference in subsection (1) to an irregularity is a reference to a
defect or irregularity (other than a substantial defect or irregularity):
(a) in, or in connection with the issue of, a document purporting to be
a warrant; or
(b) in connection with the execution of a warrant, or the purported
execution of a document purporting to be a warrant.
Giving information in evidence in criminal proceedings under this Act
76. (1) A person may give information obtained by intercepting a
communication in contravention of subsection 7(1) in evidence in a
proceeding by way of a prosecution for:
(a) an offence against subsection 7(1) constituted by the interception,
or by authorising, suffering or permitting, or doing any act or
thing to enable, the interception;
(b) an offence against section 63 constituted by communicating to a
person, making use of, making a record of, or giving in evidence
in a proceeding, information obtained by the interception;
(c) an ancillary offence relating to an offence of a kind referred to in
paragraph (a) or (b) of this subsection.
(2) A person may give designated warrant information in evidence in a
proceeding by way of a prosecution for:
(a) an offence against subsection 7(1); or
(b) an offence against section 63;
(c) an ancillary offence relating to an offence of a kind referred to in
paragraph (a) or (b) of this subsection.
Intercepted material and designated warrant information
inadmissible except as provided
77. (1) Where a communication passing over a telecommunications
system has been intercepted, whether or not in contravention of subsection
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Telecommunications (Interception) Queensland
7(1), then:
(a) subject to paragraph (b), neither information, nor a record,
obtained by the interception is admissible in evidence in a
proceeding except in so far as section 63A, 74, 75, 76 or 76A
permits a person to give in evidence in that proceeding
information so obtained; and
(b) for the purpose of determining the extent (if any) to which section
63A, 74, 75, 76 or 76A permits a person to give in evidence in a
proceeding information obtained by the interception:
(i) a person may communicate to another person, make use of,
or give in evidence in the last-mentioned proceeding,
information so obtained; and
(ii) information, or a record, so obtained is admissible in
evidence in the last-mentioned proceeding.
(2) Neither information, nor a record, obtained by virtue of a warrant
under section 11A is admissible in evidence in a proceeding unless section
63A or 74 permits a person to give in evidence in that proceeding
information obtained by virtue of the warrant.
(3) Designated warrant information is admissible in evidence in a
proceeding only to the extent that section 63AA, 74, 76 or 76A permits a
person to give designated warrant information in evidence in that
proceeding.
(4) For the purpose of determining the extent (if any) to which section
63AA, 74, 76 or 76A permits a person to give designated warrant
information in evidence in a proceeding:
(a) a person may:
(i) communicate the information to another person; or
(ii) make use of the information; or
(iii) make a record of the information; or
(iv) give the information in evidence in the proceeding; and
(b) the information is admissible in evidence in the proceeding.
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Telecommunications (Interception) Queensland
Where evidence otherwise inadmissible
78. Nothing in Part IIA or in this Part renders information, or a restricted
record, admissible in evidence in a proceeding top a greater extent than it
would have been admissible in evidence in that proceeding if this Part had
not been enacted.
Destruction of restricted records
79. (1) Where:
(a) a restricted record (whether made before or after the
commencement of this section) is in the possession of an agency
(other than an eligible authority of a State in relation to which a
declaration is in force under section 34); and
(b) the chief officer of the agency is satisfied that the restricted record
is not likely to be required for a permitted purpose in relation to
the agency;
the chief officer shall cause the restricted record to be destroyed
forthwith.
(2) In spite of subsection (1), a restricted record must not be destroyed
unless the agency has received from the Commissioner of Police written
notice that the entry in the General Register relating to the warrant under
which the record was obtained has been inspected by the Minister.
PART VIII--KEEPING AND INSPECTION OF
INTERCEPTION RECORDS OF COMMONWEALTH
AGENCIES
Other records to be kept by Commonwealth agencies in connection
with interceptions
81. (1) The Commissioner of Police shall cause:
(a) ...
(b) ...
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(c) in relation to each Part VI warrant whose authority is exercised by
the agency, particulars of:
(i) the warrant;
(ii) the day on which, and the time at which, each interception
under the warrant began;
(iii) the duration of each such interception; and
(iv) the name of the person who carried out each such
interception
(e) ...
(f) ...
(g) ...
(h) ...
to be recorded in writing or by means of a computer as soon as
practicable after the happening of the events to which the particulars
relate or the information or statement relates, as the case may be.
(2) ...
(3) The chief officer of a Commonwealth agency shall cause to be kept in
the agency's records each record that the chief officer has caused to be made
under this section.
General Register of Warrants
81A. (1) The Commissioner of Police is to cause a General Register of
Warrants to be kept.
(2) The Commissioner of Police is to cause to be recorded in the General
register in relation to each warrant issued under section 45, 46 or 48
particulars of:
(a) the date of issue of the warrant; and
(b) the Judge or nominated AAT member who issued the warrant;
and
(c) the agency to which the warrant was issued; and
(d) the telecommunications service to which the warrant relates; and
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(e) the name of the person specified in the warrant as a person using
or likely to use the telecommunications service; and
(f) the period for which the warrant is to be in force; and
(g) each serious offence in relation to which the Judge or nominated
AAT member who issued the warrant was satisfied, on the
application for the warrant, as mentioned in paragraph 45(d) or
46(1)(d), as the case may be.
Regular submission of General Register to Minister
81B. (1) Within 3 months after the commencement of section 27 of the
Telecommunications (Interception) Amendment Act 1993, the
Commissioner of Police must deliver the General Register to the Minister
for inspection by the Minister.
(2) Once at least within each succeeding period of 3 months, the
Commissioner of Police must deliver to the Minister, for inspection by the
Minister, any part of the General Register that represents information
recorded since the General Register, or any part of the General Register,
was last delivered to the Minister.
Special Register of Warrants
Special Register of Warrants
81C. (1) The Commissioner of Police is to cause a Special Register of
Warrants to be kept.
Contents of register
(2) The Commissioner of Police is to cause to be recorded in the Special
Register the following particulars in relation to each registrable expires
warrant:
(a) the date of issue of the warrant; and
(b) the Judge or nominated AAT member who issued the warrant;
and
(c) the agency to which the warrant was issued; and
(d) the telecommunications service to which the warrant related; and
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(e) the name of the person specified in the warrant as a person using
or likely to use the telecommunications service; and
(f) the period for which the warrant was in force; and
(g) each serious offence in relation to which the Judge or nominated
AAT member who issued the warrant was satisfied, on the
application for the warrant, as mentioned in paragraph 45(d) or
46(1)(d), as the case may be.
Registrable expired warrant--original warrant renewed
(3) For the purposes of this section, if:
(a) a warrant was issued under section 45, 46 or 48; and
(b) the warrant was an original warrant; and
(c) there were one or more renewals of the warrant;and
(d) at the end of the period of 3 months after the time (the "cessation
time") when the last renewal of the warrant ceased to be in force,
no criminal proceedings had been instituted, or were likely to be
instituted, against a person on the basis of information obtained as
a result of intercepting a communication under:
(i) the warrant; or
(ii) a renewal of the warrant; and
(e) the cessation time is after the commencement of this section;
the warrant, and each renewal of the warrant, becomes a registrable
expired warrant at the end of that period.
Registrable expired warrant--original warrant not renewed
(4) For the purposes of this section, if:
(a) a warrant was issued under section 45, 46 or 48; and
(b) the warrant was an original warrant; and
(c) no renewal of the warrant was issued; and
(d) at the end of the period of 3 months after the time (the "cessation
time") when the last renewal of the warrant ceased to be in force,
no criminal proceedings had been instituted, or were likely to be
instituted, against a person on the basis of information obtained as
a result of intercepting a communication under the warrant; and
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(e) the cessation time is after the commencement of this section;
the warrant becomes a registrable expired warrant at the end of that
period.
Interpretation--criminal proceedings supported by intercepted material
(5) A reference in this section to criminal proceedings that had been, or
were likely to be, instituted on the basis of information obtained as a result
of intercepting a communication under a warrant includes a reference to
criminal proceedings that were, or were likely to be, supported by
information obtained as a result of intercepting a communication under a
warrant.
Regular submission of Special Register to the Minister
Original submission
81D. (1) Within 3 months after the commencement of this section, the
Commissioner of Police must deliver the Special Register to the Minister
for inspection by the Minister.
Subsequent submissions
(2) Once at least within each succeeding period of 3 months, the
Commissioner of Police must deliver to the Minister, for inspection by the
Minister, any part of the Special Register that represents information
recorded since the Special Register, or any part of the Special Register, was
last delivered to the Minister.
Special register and General Register to be delivered at the same time
(3) As far as is practicable, the Commissioner of Police is to ensure that
delivery of the Special register, or a part of the Special Register, as the case
requires, takes place at the same time as the delivery of a part of the General
Register under subsection 82B(2).
Provision of information by eligible authorities
When section applies
81E. (1) This section applies to an eligible authority of a State if the
eligible authority is an agency.
Commissioner may require information
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(2) The Commissioner of Police may, by written notice given to the chief
officer of the eligible authority, require the chief officer to give the
Commissioner of Police such information as the Commissioner of Police
requires for the purposes of complying with the obligations imposed on
him or her by section 81C.
Information to be given
(3) The chief officer must give the information within the period, and in
the manner, specified in the notice.
Exchange of information between Ombudsman and State inspecting
authorities
92A. (1) In this section:
"State agency" means an eligible authority of a State that is an agency;
"State inspecting authority", in relation to a State agency, means the
authority that, under the law of the State concerned, has the function of
making inspections of the kind referred to in paragraph 35(1)(h).
(2) The Ombudsman may give information that:
(a) relates to a State agency; and
(b) was obtained by the Ombudsman under this Act;
to the authority that is a State inspecting authority in relation to the
agency.
(3) The Ombudsman may only give information to an authority under
subsection (2) if the ombudsman is satisfied that the giving of the
information is necessary to enable the authority to perform its functions in
relation to the State agency.
(4) The Ombudsman may receive from a State inspecting authority
information relevant to the performance of the Ombudsman's functions
under this Act.
PART IX--REPORTS ABOUT INTERCEPTIONS
UNDER PARTS V AND VI
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Division 1--Reports to the Minister
94A. Reports regarding emergency interception action
(1) The chief officer of an agency referred to in subsection 7(8) must
give to the Minister a written report concerning:
(a) an emergency interception action taken by an officer of the agency
that, because of the operation of subsection 7(6A), took place
without a warrant under Part VI; and
(b) an emergency interception action taken by an officer of the agency
in respect of which an application for a warrant was made under
Part VI and refused.
(2) The chief officer of the agency must give the report within 3 months
after:
(a) in the case set out in paragraph (1)(a)--the date on which the
action ceased; and
(b) in the case set out in paragraph (1)(b)--the date on which the
application was refused.
(3) The report must contain the following information:
(a) in an interception occurred:
(i) the date and time at which the interception began; and
(ii) the duration of the interception;
(b) if there was no interception but action had been taken to cause a
communicaton to be intercepted--details of the action taken;
(c) the circumstances that led the officer concerned to believe that the
conditions of subsection 7(4) or (5) were satisfied;
(d) in the case set out in paragraph (i)(a)--the reasons it was not
practicable to apply for a warrant under Part VI in relation to the
action;
(e) in the case set out in paragraph (1)(b)--the reasons the judge or
nominated ATT member refused the application if the reasons are
known;
(f) information about the use made by the agency of information
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obtained by the interception;
(g) information about the communication of such information to
persons other than officers of the agency;
(h) the number of arrests that have been, or are likely to be, made on
the basis of such information;
(i) an assessment of the usefulness of information obtained by the
interception.
(4) In this section:
emergency interception action means an interception done under
subsection 7(4) or (5) or action taken under one of those subsections to
cause an interception to occur.
Annual reports by State authorities
96. (1) Subject to subsection (2), the chief officer of an eligible authority
of a State shall, as soon as practicable, and in any event within 3 months,
after each 30 June, give to the Minister a written report that:
(a) if information that section 102 or 102A requires to be set out in
the Minister's report under Division 2 relating to the year ending
on than 30 June can be derived from the authority's records--sets
out that information; or
(b) in any other case--states that no such information can be so
derived.
(1A) A report under subsection (1) must include a statement of the total
expenditure (including expenditure of a capital nature) incurred by the
eligible authority concerned in connection with the execution of warrants
during the year to which the report relates.
(2) Where a Minister of a State has given to the Minister a written report
that sets out the information that, but for this subsection, subsections (1)
and (1A) would require to be set out in a report by the chief officer of an
eligible authority of that State, the chief officer need not give the Minister
the last-mentioned report.
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© The State of Queensland 1998