WA corruption body concerned with middleman process in production orders Bill

Corruption and Crime Commission Western Australia takes issue with the Attorney General's department acting as a middleman in receiving requested communications and passing them on.
Written by Asha Barbaschow, Contributor

Corruption and Crime Commission Western Australia (CCC) has voiced its concerns with the processes for receiving international communications to assist with its enforcement activity, as currently outlined in Australia's pending Telecommunications Legislation Amendment (International Production Orders) Bill 2020

It said it was apprehensive with conferring a power onto an eligible judge or an issuing authority to "direct that intercepted communications, a copy of stored communications, or telecommunications data is provided to the commission indirectly via the Department of the Attorney General".

"The material sought by the commission may be time critical. The department acting as a conduit for material may impede the effectiveness of utilising an international production order (IPO)," it said.

The remarks were made in a submission [PDF] to the Parliamentary Joint Committee on Intelligence and Security (PJCIS) and its review of the Bill.

The Bill is intended to amend the Telecommunications (Interception and Access) Act 1979 (TIA Act) to create a framework for Australian agencies to gain access to stored telecommunications data from foreign designated communication providers in countries that have an agreement with Australia, and vice versa. It would also remove the ability for nominated Administrative Appeals Tribunal members to issue certain warrants.

The Bill is a precondition for Australia to obtain a proposed bilateral agreement with the United States in order to implement the US Clarifying Lawful Overseas Use of Data Act (the CLOUD Act).

The CCC was established as a statutory body in 2004, with functions in respect to serious misconduct by public officers and organised crime. Its role has since been expanded to include the ability to fight organised crime through the investigation, seizure, and confiscation of unexplained wealth.

"The commission uses its investigative powers to identify and deal effectively with serious misconduct in the public sector. Serious misconduct in general terms includes corruption by public officers or serious offending whilst acting in an official capacity," it wrote.

"The commission also assists the Western Australia Police Force (WAPF) to combat organised crime by authorising the use of investigative powers not ordinarily available to WAPF."

The CCC said corruption is a difficult offence to detect and investigate, explaining that the ability to intercept communications and accessing of telecommunications and stored communications data has been an effective investigative method for obtaining evidence of corrupt and other unauthorised activity.

"The commission is operating in a criminal environment where corrupt conduct is becoming transnational in nature. The ability to obtain material from foreign providers will be invaluable in the commission's investigation into such activities," CCC said.

To that effect, the commission said it welcomes the introduction of the Bill into Parliament and supports its passage as it allows it to intercept international material and access telecommunications and data that is stored outside Australia.

"Ultimately, it will allow the commission to obtain important and relevant evidence from designated communication service providers in foreign countries to contribute to its investigations into serious misconduct within the Western Australia public sector," it said.

In offering suggestions for how to tweak the Bill, the commission said it was uncertain on why the definition of "eligible judge" requires amendment, saying it would create a distinction between judges that can grant an interception warrant and those that can grant an interception IPO.

"The commission notes the definition of 'issuing officer' remains the same, therefore the power to grant a stored communications IPO and a stored communications warrant is conferred on the same officer," it said.

"It would assist law enforcement agencies if the officers granting an IPO are consistent with those granting the equivalent domestic warrant."

While the CCC is content with the decision to provide for an ability to apply for an IPO by telephone, it is concerned with the ability for an IPO to be cancelled.

"The commission is concerned with conferring an unfettered ability on the Secretary of the Department of Attorney General to cancel an IPO," it said.

"The Bill should establish preconditions or outline a confined set of circumstances where such a power can or should be exercised.

"The commission notes significant effort and resources will be required to obtain an IPO. The Secretary may not be aware of sufficient operational information to make a decision that is appropriate in all of the circumstances."

Meanwhile, the PJCIS on Thursday said it has completed its review of the mandatory data retention regime and is now working on its report.

"The committee has received considerable evidence from submitters and witnesses regarding the effectiveness of the mandatory data retention regime. This marks the completion of the committee's review and the committee's attention now turns to preparing a bipartisan report which delivers tangible ideas for reform and consideration," committee chair Andrew Hastie said.

PJCIS expects to table the report by the end of July.


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