Telecommunications (Interception) Tasmania Act 1999
An Act to enable the Tasmania Police Service to be declared an agency for the purposes of the Telecommunications (Interception) Act 1979 of the Commonwealth and for related purposes
[Royal Assent 16 July 1999]
Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:
PART 1 - Preliminary
This Act may be cited as the Telecommunications (Interception) Tasmania Act 1999 .
This Act commences on the day on which this Act receives the Royal Assent.
(1) In this Act, unless the contrary intention appears –Commissioner means the Commissioner of Police in this State;[Section 3 Subsection (1) amended by No. 18 of 2008, s. 45, Applied:26 Jun 2008] Commonwealth Act means the Telecommunications (Interception and Access) Act 1979 of the Commonwealth;Commonwealth Minister means the Minister administering the Commonwealth Act;contravene includes fail to comply with;inspecting officer means –(a) the Ombudsman; and(b) an officer of the Ombudsman authorised by the Ombudsman to undertake an inspection;inspection means an inspection under Part 3 ;officer of the Ombudsman has the same meaning as in the Ombudsman Act 1978 ;Ombudsman has the same meaning as in the Ombudsman Act 1978 ;possession includes custody and control;regulations means regulations made and in force under this Act;[Section 3 Subsection (1) amended by No. 76 of 2003, Sched. 1, Applied:01 Jan 2004][Section 3 Subsection (1) amended by No. 76 of 2003, Sched. 1, Applied:01 Jan 2004] Tasmania Police Service means the Police Service as defined in the Police Service Act 2003 .(2) Unless the contrary intention appears, each of the following expressions has the same meaning as in the Commonwealth Act:(a) agency;(b) certifying officer;(c) [Section 3 Subsection (2) amended by No. 32 of 2004, s. 4, Applied:27 Oct 2004] . . . . . . . .(d) premises;(e) restricted record;(f) warrant;(g) any other expression not defined in subsection (1) but defined in the Commonwealth Act.(3) A reference in this Act to an Act of the Commonwealth is a reference to that Act as amended from time to time.
PART 2 - Keeping of records of telecommunications interceptions
4. Records connected with issue of warrants
The Commissioner must keep in the records of the Tasmania Police Service –(a) each warrant issued to the Tasmania Police Service; and(b) a copy of each notification of the issue of a warrant given under section 53(1)(b) of the Commonwealth Act; and(c) each instrument revoking a warrant issued to the Tasmania Police Service; and(d) a copy of each certificate issued under section 61(4) of the Commonwealth Act by a certifying officer of the Tasmania Police Service; and(e) each authorisation made by the Commissioner under section 66(2) of the Commonwealth Act.
5. Other records connected with an interception
(1) The Commissioner must cause the following particulars and statements to be recorded as soon as practicable after the occurrence of the event to which they relate:(a) particulars of each telephone application for a warrant made on behalf of the Tasmania Police Service;(b) in relation to each application for a warrant made on behalf of the Tasmania Police Service, a statement as to whether –(i) the application was withdrawn or refused; or(ii) a warrant was issued on the application;(ba) [Section 5 Subsection (1) amended by No. 32 of 2004, s. 5, Applied:27 Oct 2004] in relation to each warrant whose authority is exercised by the Tasmania Police Service, particulars of –(i) the warrant; and(ii) the day on which, and the time at which, each interception under the warrant began; and(iii) the duration of each such interception; and(iv) the name of the person who carried out each such interception; and(v) in relation to a named person warrant, each service to or from which communications have been intercepted under the warrant;(c) in relation to each restricted record that has at any time been in the possession of the Tasmania Police Service –(i) if the record was obtained by an interception under a warrant, particulars of that warrant; and(ii) particulars of each occasion on which the record came (whether by its making or otherwise) to be in the possession of the Tasmania Police Service; and(iii) particulars of each occasion (if any) on which the record ceased (whether by its destruction or otherwise) to be in the possession of the Tasmania Police Service; and(iv) particulars of each agency, body or other person (if any) from whom the Tasmania Police Service received the record or to whom the Tasmania Police Service supplied the record;(d) particulars of each use made by the Tasmania Police Service of lawfully obtained information;(e) particulars of each communication of lawfully obtained information by a member of the Tasmania Police Service to a person or body other than another member of the Tasmania Police Service;(f) particulars of each occasion on which, to the knowledge of a member of the Tasmania Police Service, lawfully obtained information was given in evidence in a relevant proceeding.(1A) [Section 5 Subsection (1A) inserted by No. 32 of 2004, s. 5, Applied:27 Oct 2004] If a warrant is a named person warrant, the particulars referred to in subsection (1)(ba)(ii) must indicate the service in respect of which each interception occurred.(2) The Commissioner must keep in the records of the Tasmania Police Service each record that the Commissioner has caused to be made under subsection (1) .
6. Documents to be given to Minister
The Commissioner must give to the Minister –(a) [Section 6 Amended by No. 7 of 2010, s. 4, Applied:09 Jul 2010] . . . . . . . .(b) [Section 6 Amended by No. 7 of 2010, s. 4, Applied:09 Jul 2010] . . . . . . . .(c) within 3 months after a warrant issued to the Tasmania Police Service ceases to be in force, a written report about –(i) the use made by the Tasmania Police Service of information obtained by interceptions under the warrant; and(ii) the communication of that information to persons other than members of the Tasmania Police Service; and(d) as soon as practicable, and in any event within 3 months, after each 30 June, a written report that sets out the information that –(i) [Section 6 Amended by No. 18 of 2008, s. 46, Applied:26 Jun 2008] is required by Division 2 of Part 2-8 of the Commonwealth Act to be set out in the Commonwealth Minister's report under that Division in relation to the year ending on that 30 June; and(ii) can be derived from the records of the Tasmania Police Service.
7. Documents to be given to Commonwealth Minister
[Section 7 Substituted by No. 7 of 2010, s. 5, Applied:09 Jul 2010] As soon as practicable after receiving a report made under section 6(c) or (d) , the Minister is to give a copy of that report to the Commonwealth Minister.
8. Keeping and destruction of restricted records
(1) In this section, a reference to a restricted record is a reference to a restricted record that –(a) is made either before, at the same time as or after the commencement of section 35 of the Commonwealth Act; and(b) is in the possession of the Tasmania Police Service.(2) Except while a restricted record is being dealt with in accordance with this Act or the Commonwealth Act, the Commissioner must cause the restricted record to be kept in a secure place so that it is not accessible to persons who are not entitled to deal with it.(3) The Commissioner must cause a restricted record to be destroyed immediately if he or she is satisfied that the record is not likely to be required for a permitted purpose, other than a purpose connected with –(a) an inspection; or(b) a report on such an inspection.
PART 3 - Inspections of records and reports by Ombudsman
9. General power to inspect and report on records
The Ombudsman may at any time –(a) inspect the records of the Tasmania Police Service to ascertain the extent of the compliance by the members of the Tasmania Police Service with Part 2 during any period; and(b) report to the Minister about the results of the inspection; and(c) do anything necessary or convenient for the exercise of the powers specified in paragraphs (a) and (b) .
10. Regular inspections of records
At least once in each period of 6 months, the Ombudsman must inspect the records of the Tasmania Police Service to ascertain the extent of compliance by the members of the Tasmania Police Service with Part 2 since the last inspection.
(1) Not later than 3 months after the end of each financial year, the Ombudsman must report in writing to the Minister on the results of inspections carried out in that financial year.(2) If the Ombudsman has provided a report under subsection (1) or section 9(b) to the Minister, the Ombudsman –(a) must notify the Commonwealth Minister, in writing, that the report has been given; and(b) must provide the Commissioner with a copy of the report.
12. Report on contravention of Part 2
[Section 12 Amended by No. 7 of 2010, s. 6, Applied:09 Jul 2010] If, as a result of an inspection, the Ombudsman is of the opinion that a member of the Tasmania Police Service has contravened the Commonwealth Act or that the Commissioner has contravened section 6(c) , the Ombudsman must –(a) allow the Commissioner an opportunity to provide written comments in respect of that matter; and(b) include in the report under section 9(b) or section 11(1) –(i) a report on the contravention; and(ii) a copy of the written comments of the Commissioner.
13. General powers for inspections
(1) For the purposes of an inspection, an inspecting officer –(a) after notifying the Commissioner, may enter at any reasonable time premises occupied by the Tasmania Police Service; and(b) is entitled to have full and free access at all reasonable times to all records of the Tasmania Police Service that the inspecting officer considers are relevant to the inspection; and(c) despite any other law, is entitled to make copies of, and to take extracts from, records of the Tasmania Police Service that the inspecting officer considers are relevant to the inspection; and(d) may require a member of the Tasmania Police Service to provide to the inspecting officer any information –(i) that the inspecting officer considers is relevant to the inspection; and(ii) that is in the member's possession, or to which the member has access.(2) If an inspecting officer has reason to believe that a member of the Tasmania Police Service is able to provide information relevant to an inspection, the inspecting officer may, by written notice provided to the member –(a) require the member to provide the information –(i) in writing; and(ii) signed by the member; and(iii) at a place specified in the notice; and(iv) within a period specified in the notice; and(b) require the member, for the purpose of answering questions relevant to the inspection, to attend –(i) before an inspecting officer specified in the notice; and(ii) at the place, and within the period or at the time, specified in the notice.(3) If an inspecting officer has reason to believe that a member of the Tasmania Police Service may be able to provide information relevant to an inspection but does not know the member's identity, the inspecting officer may require the Commissioner or a person nominated by the Commissioner to attend before an inspecting officer specified in the requirement for the purpose of answering questions relevant to the inspection.(4) A requirement under subsection (3) is to –(a) be made by written notice provided to the Commissioner; and(b) specify the place at which, and the period within which or the time at which, the Commissioner or nominated person is to attend.(5) Despite any other law, a person is not excused from providing information, answering a question or giving access to a document, as and when required by or under this section, on the ground that to do so 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.(6) The Commissioner must ensure that members of the Tasmania Police Service provide an inspecting officer with such assistance in relation to an inspection as the inspecting officer reasonably requires.
(1) The following are not admissible in evidence against a person except in proceedings for an offence against section 16(1) , section 18(1) or section 19(1) or (2) :(a) information or an answer provided or given by the person under, or as required by an inspecting officer under, section 13 ;(b) the fact that the person has given access to a document under section 13 ;(c) any information or thing (including a document) obtained directly or indirectly in consequence of the person having provided or given information, an answer or access to a document under, or as required by an inspecting officer under, section 13 .(2) Despite any other law, the Ombudsman and any officer of the Ombudsman may make use of, make a record of or provide to another such officer and to the Ombudsman any information that –(a) is obtained during, or as a result of, an inspection; and(b) is relevant to the inspection.(3) The Ombudsman may provide information of a kind mentioned in subsection (1) to the Commonwealth Ombudsman if satisfied that the provision of the information is relevant to the performance of the Commonwealth Ombudsman's functions under the Commonwealth Act.
15. Protection of Ombudsman and officers from liability
Except as otherwise provided by section 16 and section 18 , the Ombudsman or an officer of the Ombudsman does not incur any liability in respect of any act done or omitted in good faith –(a) in the performance or exercise, or the purported performance or exercise, of any function or power under this Act; or(b) in the administration, or the purported administration, of this Act.
16. Confidentiality of information obtained under warrant
(1) Except as otherwise allowed by this Act, the Ombudsman or an officer of the Ombudsman must not record or disclose information that –(a) was obtained by anyone under a warrant; and(b) came to the Ombudsman's or officer's knowledge during or as the result of an inspection.Penalty: Fine not exceeding 100 penalty units or a term of imprisonment not exceeding 12 months, or both.(2) Subsection (1) does not –(a) prevent the Ombudsman or an officer of the Ombudsman from disclosing in a report under this Part any matter for the purpose of stating the grounds for the conclusions and recommendations in the report; or(b) otherwise prevent the Ombudsman or an officer of the Ombudsman from recording or disclosing information for the discharge of functions under this Act.(3) A person is not compellable in any proceeding to disclose information that –(a) was obtained by anyone under a warrant; and(b) came to that person's knowledge because the person is or was engaged in the administration of this Act.(4) If information was obtained by anyone under a warrant and that information came to a person's knowledge both –subsections (1) and (3) apply despite any provisions of that other Act that may allow the person to record, disclose or be compelled in a proceeding to disclose the information and those provisions of that other Act do not apply in respect of that information.(a) because the person is or was the Ombudsman or an officer of the Ombudsman; and(b) because the person is or was engaged in the administration of another Act –
PART 4 - Miscellaneous
17. Report to Commonwealth Minister
As soon as practicable after receiving a report on an inspection, the Minister must provide a copy of the report to the Commonwealth Minister.
(1) Except as allowed by this Act, a person who is or was engaged in the administration of this Act must not disclose any information or record obtained by the person because of the person's engagement in the administration of this Act except where the disclosure is made under this Act or under the Commonwealth Act.Penalty: Fine not exceeding 100 penalty units or a term of imprisonment not exceeding 12 months, or both.(2) Subsection (1) applies despite the provisions of another Act that may allow a person to disclose the information or record because the person was engaged in the administration of the other Act and those provisions do not apply in respect of that information or record.
(1) A person must not, without reasonable excuse –(a) refuse or fail to comply with a requirement made under section 13(1) , (2) or (3) ; or(b) obstruct or hinder an inspecting officer who is exercising powers under section 13 .Penalty: Fine not exceeding 100 penalty units or a term of imprisonment not exceeding 12 months, or both.(2) A person must not provide information that the person knows to be false or misleading in a material particular to an inspecting officer who is exercising powers under section 13 .Penalty: Fine not exceeding 100 penalty units or a term of imprisonment not exceeding 12 months, or both.
The Ombudsman may delegate, in writing, any of his or her functions or powers under this Act, other than this power of delegation.
(1) The Governor may make regulations for the purposes of this Act.(2) Regulations may be made so as to apply differently according to matters, limitations or restrictions, whether as to time, circumstance or otherwise, specified in the regulations.(3) Regulations may –(a) provide that a contravention of, or a failure to comply with, any of the regulations is an offence; and(b) in respect of such an offence, provide for the imposition of a fine not exceeding 5 penalty units and, in the case of a continuing offence, a further fine not exceeding 0.5 penalty units for each day during which the offence continues.
Until provision is made in relation to this Act by order under section 4 of the Administrative Arrangements Act 1990 –(a) the administration of this Act is assigned to the Minister for Police and Public Safety; and(b) the department responsible to the Minister for Police and Public Safety in relation to the administration of this Act is the Department of Police and Public Safety.