Telecommunications Interception Legislation Amendment Bill 2001
Last Updated: 1 October 2001
The Telecommunications Interception Legislation Amendment Bill 2001 was introduced into Commonwealth Parliament on 27 September 2001. (This Bill was not voted on.) On the same day, the Federal Attorney General issued a media release stating, among other things, that:
"Law enforcement agencies investigating serious arson and child pornography offences will be able to intercept telephone, Internet and e-mail communications, under legislation introduced into the Parliament today."
That wording in the media release apparently alarmed a large number of ordinary law abiding Australian Net users, particularly in view of indications that governments may vastly extend law enforcement powers to surveil citizens in response to the 11 September 2001 terrorist attacks in the USA.
However, reference to the actual Bill and the Explanatory Memorandum indicates that a reasonable balance will be struck between law enforcement needs and the public interest in tracking down/prosecuting criminals, and ordinary Net users' privacy.
The word "serious" in the media release appears to be important in terms of the proposed law's purpose and use. The existing Act includes, in Section 5D, a list of "Class 2" offences in relation to which law enforcement agencies may obtain a warrant to intercept telephone and Internet communications to assist their investigations.
According to the Explanatory Memorandum to the Bill:
"This item [re child pornography] amends the definition of class 2 offence to include an offence punishable by a maximum period of at least 7 years where the conduct constituting the offence involves, or would involve dealings in child pornography or any involvement in the employment of a child in connection with child pornography. The effect of the amendment is to permit agencies to apply for a warrant authorising the interception of telecommunications where information that may be obtained would be likely to assist in the investigation of the range of child pornography offences described punishable by a maximum of at least 7 years imprisonment in the relevant legislation."
The item re arson is similarly worded in relation to 7 years imprisonment.
Hence it appears that a warrant to intercept a person's email or other Internet use could not be issued unless the alleged offence being investigated involved a maximum penalty of at least 7 years imprisonment.
Generally speaking, the maximum term of imprisonment for possession, distribution, etc, of child abuse material in State/Territory laws is 1 to 5 years. Maximum terms may be longer for some offences in some States/Territories, not all have been checked, but are believed to be fairly similar. In some jurisdictions longer terms apply in cases where the number of copies possessed of a particular item (e.g. videos, magazines, etc) indicates an intent to sell or distribute etc such material.
Hence, it seems that any fears that this Bill would enable police to obtain telecommunications surveillance warrants to go on fishing trips in response to mischievious or vague allegations that a person had (inadvertently or otherwise) accessed/downloaded a web page, or received an email message (unsolicited or otherwise), containing illegal material would be unfounded.
The proposed provisions seem likely directed to investigating suspicion of criminal activities involving offences such as: procuring a child for the purpose of producing child pornography (eg. in Victoria, the maximum penalty is 10 years imprisonment); or arranging to obtain possession of quantities of material (including videos, magazines) involving child pornography intended for sale/distribution, via use of telephone and Internet communications.
The Bill also includes a number of amendments to the Act to clarify the intent of previous amendments. One of these includes an amendment to wind back an overly broad power to issue warrants that apparently was an accidental result of the last amendments to the Act.