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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Telecommunications (Interception)
Bill 2012
A BILL FOR
An Act for enabling SA Police and the Independent Commissioner Against
Corruption to be declared agencies for the purposes of the Telecommunications
(Interception and Access) Act 1979 of the Commonwealth; to repeal the
Telecommunications
(Interception) Act 1988; and for other purposes.
Contents
1Short title
2Interpretation
3Obligations of chief officer
of eligible authority relating to records
4Obligations of chief officer
of eligible authority to report to Attorney-General
5Obligations and powers of
review agency
6Obligations of Attorney-General
7Regulations
Schedule 1—Repeal of
Telecommunications (Interception) Act 1988
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Telecommunications (Interception)
Act 2012.
chief officer of an eligible authority means—
(a) for SA Police—the Commissioner of Police; or
(b) for the Independent Commissioner Against Corruption—the
Independent Commissioner Against Corruption;
Commonwealth Act means the Telecommunications
(Interception and Access) Act 1979 of the Commonwealth;
eligible authority means—
(a) SA Police; or
(b) the Independent Commissioner Against Corruption;
Independent Commissioner Against Corruption means the person
holding or acting in the office of the Independent Commissioner Against
Corruption under the Independent
Commissioner Against Corruption Act 2012;
in the possession of, in relation to a record, includes in
the custody of or under the control of;
officer of an eligible authority means—
(a) for SA Police—a police officer or a police officer (however
described) of another jurisdiction seconded to SA Police; or
(b) for the Independent Commissioner Against Corruption—an
investigator under the Independent
Commissioner Against Corruption Act 2012;
premises includes—
(a) land; and
(b) a structure, building, aircraft, vehicle, vessel or place (whether
built on or not); and
(c) part of such a structure, building, aircraft, vehicle, vessel or
place;
restricted record means a record (other than a copy) obtained
by means of an interception, whether or not in contravention of
section 7(1) of the Commonwealth Act, of a communication passing over a
telecommunications system;
review agency for an eligible authority
means—
(a) for SA Police—the Police Ombudsman; or
(b) for the Independent Commissioner Against Corruption—a person who
is independent of the Commissioner and is appointed by the Governor as the
review agency;
SA Police means South Australia Police;
warrant means a warrant issued or to be issued to an eligible
authority under Part 2-5 of the Commonwealth Act.
(2) Expressions not defined in
subsection (1) but
defined in the Commonwealth Act have, in this Act, the same meaning as in the
Commonwealth Act.
3—Obligations
of chief officer of eligible authority relating to records
(1) The chief officer
of an eligible authority must—
(a) record in writing particulars corresponding to those required to be
recorded by the chief officer of a Commonwealth agency under section 81 of
the Commonwealth Act as soon as practicable after the event to which they relate
occurs; and
(b) keep, in the authority's records, records corresponding to those
required to be kept by the chief officer of a Commonwealth agency in the
agency's records under sections 80 and 81 of the Commonwealth Act;
and
(c) cause a restricted record that is in the possession of the authority
to be kept in a secure place (except while it is being dealt with in accordance
with this Act or the Commonwealth Act), being a place that is not accessible to
persons other than those who are entitled to deal with the record; and
(d) cause any such
restricted record to be destroyed immediately if the chief officer is satisfied
that the record is not likely to be required for a permitted purpose in relation
to the eligible authority.
(2)
Subsection (1)
applies to a restricted record whether made before or after the commencement of
section 35 of the Commonwealth Act, but does not apply to a restricted
record that is a record of a communication intercepted under
section 7(2)(aaa) of the Commonwealth Act.
(3) For the purposes of
subsection (1)(d),
the definition of a permitted purpose in the Commonwealth Act is to be read as
if it does not include an inspection by a review agency under
section 5 or a
report on the results of such an inspection and, consequently, a restricted
record may be destroyed even though it has not been inspected.
4—Obligations
of chief officer of eligible authority to report to
Attorney-General
The chief officer of an eligible authority must give to the
Attorney-General—
(a) within
3 months after a warrant issued to the authority ceases to be in force, a
written report of—
(i) the use made by the authority of information obtained by interceptions
under the warrant; and
(ii) the communication of that information to persons other than officers
of the authority; and
(b) as soon as practicable (but not later than 3 months) after each
30 June, a written report that sets out such information as Part 2-8
Division 2 of the Commonwealth Act requires to be set out in the
Commonwealth Minister's report under that Division relating to the year ending
on that 30 June as can be derived from the records of the
authority.
5—Obligations
and powers of review agency
(1) The review agency
for an eligible authority—
(a) must, at least once in each period of 6 months, inspect the
records of the eligible authority for the purpose of ascertaining the extent of
compliance with
section 3;
and
(b) must, not later than 2 months after completion of such an
inspection, report in writing to the Attorney-General on the results of the
inspection.
(2) If, in the course of conducting an investigation, the review agency
forms the opinion that there has been non-compliance with some other section of
this Act or with the Commonwealth Act, the review agency may include details of
the non-compliance in the report on the results of the inspection.
(3) The review agency must, before including details of non-compliance in
a report, give the chief officer of the eligible authority an opportunity to
make comments in writing and must submit any comments received with the
report.
(4) For the purposes of an inspection, the review agency for an eligible
authority, or a person authorised by the review agency for the
purpose—
(a) may, after notifying the chief officer of the eligible authority,
enter at any reasonable time premises occupied by an eligible authority;
and
(b) is entitled to have full and free access at all reasonable times to
all records of the eligible authority; and
(c) is, despite any other law, entitled to make copies of, and to take
extracts from, records of an eligible authority; and
(d) may require an officer of an eligible authority to give the review
agency or authorised person such information as the review agency considers
necessary, being information that is in the officer's possession, or to which
the officer has access, and that is relevant to the inspection.
(5) If the review agency has reason to believe that an officer of an
eligible authority is able to give information relevant to an inspection, the
review agency may, by written notice to the officer—
(a) require the officer to give the information, in writing, signed by the
officer, at a specified place and within a specified period; and
(b) require the officer to attend before a specified person at a specified
place and within a specified period or at a specified time on a specified day,
in order to answer questions relevant to the inspection.
(6) If the review agency has reason to believe that an officer of an
eligible authority is able to give information relevant to an inspection but
does not know the officer's identity, the review agency may, by written notice
to the chief officer of the eligible authority, require the chief officer or a
person nominated by the chief officer to attend before a specified person at a
specified place and within a specified period or at a specified time on a
specified day, in order to answer questions relevant to the
inspection.
(7) Despite any other law, a person is not excused from giving
information, answering a question, or giving access to a document, as and when
required by or under this section, on the grounds that it would contravene a
law, would be contrary to the public interest or might tend to incriminate the
person or make the person liable to a penalty.
(8) The following are not admissible in evidence against a person except
in proceedings for an offence against this section:
(a) information or an answer given by the person under this
section;
(b) the fact that the person has given access to a document under this
section;
(c) any information or thing (including a document) obtained directly or
indirectly in consequence of the person having given information or an answer,
or access to a document, under this section.
(9) The chief officer of an eligible authority must ensure that officers
of the authority provide the review agency for the authority with such
assistance in relation to an inspection as the review agency reasonably
requires.
(10) A person who is required under this section—
(a) to attend before a person; or
(b) to give information; or
(c) to answer a question,
and who, without reasonable excuse, refuses or fails to comply with the
requirement is guilty of an offence.
Penalty: $5 000 or imprisonment for 1 year.
(11) A person—
(a) who, without reasonable excuse, hinders a person exercising powers
under this section; or
(b) who gives to a person exercising powers under this section information
knowing it to be false or misleading in a material particular,
is guilty of an offence.
Maximum penalty: $5 000 or imprisonment for 1 year.
(12) The review agency may give information obtained under this section to
the Commonwealth Ombudsman if the review agency is satisfied that the giving of
the information is relevant to the performance of the Commonwealth Ombudsman's
functions under the Commonwealth Act.
(13) Except as is required for the administration of this Act or
authorised by this Act, the review agency and persons authorised by the review
agency under this Act must not, directly or indirectly, divulge or communicate
information acquired under this Act.
Maximum penalty: $10 000 or imprisonment for 2 years.
(14) Without limiting when information or a question will be relevant to
an inspection of an eligible authority's records for the purposes of this
section, the information or question will be relevant if it is
about—
(a) the location of a record; or
(b) the making, compilation or keeping of a record; or
(c) the accuracy or completeness of a record; or
(d) a matter to which a record relates; or
(e) if the review agency for the authority suspects on reasonable grounds
that an officer of the authority has contravened this Act or the Commonwealth
Act—a matter relating to the suspected contravention.
6—Obligations
of Attorney-General
The Attorney-General must, as soon as practicable after receiving a report
under this Act, give a copy of the report to the Minister responsible for the
administration of the Commonwealth Act.
The Governor may make such regulations as are contemplated by this Act or
necessary or expedient for the purposes of this Act.
Schedule 1—Repeal
of Telecommunications (Interception)
Act 1988
The Telecommunications
(Interception) Act 1988 is repealed.