Greenleaf, Graham --- "Telecommunications (Interception) Act 1979 (Cth) - amendments" [1994] PrivLawPRpr 132; (1994) 1(9) Privacy Law & Policy Reporter 174

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Telecommunications (Interception) Act 1979 (Cth) - amendments

Telecommunications (Interception) Amendment Act 1993 (Cth), No 103, 1993; ss 1, 2, 4, 6-11, 13, 19-23 and 29-34 and subs 3(1) and (3) commenced on 22 December 1993. Sections 5, 12, 14-18 and 24-28 and subs 3(2) commenced on 1 February 1994.

These amendments to the Telecommunications (Interception) Act 1979, enacted in December 1993, implement recommendations from the 1992 review of the Act by the Attorney-General's Department. The Australian Privacy Commissioner raised no objection to these amendments. Other more controversial recommendations have not been followed up as yet.

Interception without a warrant is now allowed in some specified emergency situations (new s 7(4)-(10). These are essentially where there are reasonable grounds to believe that a law enforcement agency or a third party is likely to receive a phone call from a person who has:

(1) done an act that has resulted or, may result, in loss of life or infliction of serious personal injury; (2) threatened to kill or seriously injure another person or to cause serious damage to property; or (3) threatened to take his or her own life or create a serious threat to his or her health or safety and the urgency of the situation meant that it was not 'reasonably practicable' for a Pt VI (judicial) warrant to be obtained.

The Privacy Commissioner had proposed that these emergency provisions be subject to a retrospective post event warrant process. This safeguard was not present in the Bill as introduced but was reinstated by opposition amendments accepted by the government (new ss 7(6)-(7)).

The amendments also clarify that it is not a breach of the Act if a communication is incidentally intercepted while an interception warrant is being carried out, or while lawful steps are being taken to discover if a listening device is being used (new ss 7(2)(ab)-(ac)).

The scope of interceptible communications has been broadened slightly by the substitution of 'prescribed substances' (a substance that is a narcotic drug or psychotropic substance for the purposes of the Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990') for 'narcotic drugs' in the definition of 'Class 2 offence'.

More significantly, Class 2 offences have been broadened to include 'computer crime' offences (offences against Pt VIA Crimes Act 1914 (Cth), which do not necessarily carry the seven year minimum term otherwise required for Class 2 offences.

Graham Greenleaf