National Anti-Corruption Commission committee told 'incidental collection' of data possible

A parliamentary committee reviewing the bill to create the National Anti-Corruption Commission on Friday heard potential problems with amendments it would make to laws allowing authorities to intercept telecommunications.

The amendment would give such powers to the NACC in place of the Australian Commission for Law Enforcement Integrity and the Law Enforcement Integrity Commissioner.

If the bill is passed by the end of the year, as the Labor government hopes, the anti-corruption commission would be a criminal law enforcement agency.

This would allow the commissioner or deputy commissioner of the federal anti-corruption agency to apply for warrants to intercept communications, and access to stored communications and telecommunications data, such as emails and text messages.

Dr William Stoltz, policy director at the Australian National University's National Security College, told the committee "better attention needs to be paid in the proportionality assessment when these warrants are authorised" by a judge, magistrate or member of the Administrative Appeals Tribunal.

He said if National Security Committee or cabinet members, their staff and even public servants were subject to an investigation, "there would still be a degree of incidental collection that poses a pretty high risk of collecting sensitive cabinet information".

"The reality of incidental collection, and the way targeting works, is that it's not just those individuals that are relevant here. It is kind of the larger network of people around them as well," Dr Stoltz said.

Lucinda Atkinson, assistant secretary of the fraud prevention and anti-corruption branch at the Attorney General's Department, said the surveillance powers would only be used in criminal investigations of public officials.

"These powers will only be available in those very, most serious of cases and the issuing authority or the authorised officer will need to be satisfied that the evidence would be attained, would go towards proving a criminal offence," she said.

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Richard Pye, Clerk of the Senate, also appeared before the committee and said parliamentary privilege would still apply if the commission was to use interception and access powers under the Telecommunications (Interception and Access) Act.

"We know that the legislation for the proposed National Anti-Corruption Commission preserves privilege through its provisions, but the TIA is silent as to the application of privilege," Mr Pye said.

"We would argue, and certainly as the position of the houses, that privilege applies in the exercise of powers under the TIA."

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