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The Interception of Communications and Surveillance Bill, which seeks to provide a new legal basis to regulate the conduct of interception of communications and covert surveillance by law enforcement agencies (LEAs), will be gazetted on Friday (March 3).
It will be introduced into the Legislative Council for first and second readings on March 8.
The Bill replaces the current systems under section 33 of the Telecommunications Ordinance and the Law Enforcement (Covert Surveillance Procedures) Order promulgated in August 2005.
"We have drafted the Bill on the basis of the legislative proposals presented to the Legislative Council Panel on Security early last month (February). The regime proposed, so far as interception of communications is concerned, is very much in line with those under a 1996 Law Reform Commission's report and a 1997 White Bill," a spokesman for the Security Bureau said today (March 1).
"We have also added improvements including additional safeguards for privacy and against abuse, taking into account the views received during consultations in recent months.
"The Bill, if enacted, would provide for a regime which is superior to our current regime and the alternative regimes that have been discussed so far," the spokesman said.
The Bill sets out the definitions and the conditions for the issue, renewal or continuance of prescribed authorisations for the conduct of interception of communications and covert surveillance operations.
It also provides for stringent safeguards for privacy at different stages of these operations, including judicial authorisation for more intrusive operations, an independent oversight authority, and a complaints handling mechanism involving the payment of compensation.
There are provisions requiring that authorisation should only be given for the purposes of preventing or detecting serious crime or the protection of public security. Serious crime refers to offences punishable with a maximum imprisonment of not less than three years or a fine of not less than $1 million for covert surveillance, or offences punishable with a maximum imprisonment of not less than seven years for interception.
In addition, there are requirements that the tests of proportionality and hence necessity must be met, taking into account the gravity and immediacy of a case and whether other less intrusive means can reasonably be adopted, before authorisations can be granted.
The Bill provides for a tiered authorisation system to deal with interception of communications and covert surveillance with varying degrees of intrusiveness, broadly as follows:
* Applications for all interception of communications and more intrusive covert surveillance would have to be submitted to one member of a panel of three to six judges from the Court of First Instance of the High Court, and such applications may only be made after clearance by a directorate officer of the LEA concerned. Members of the panel would be appointed by the Chief Executive on the recommendation of the Chief Justice. Applications should only be made by officers of specified departments - in respect of interception operations, the Police, Independent Commission Against Corruption and Customs and Excise Department, and in respect of covert surveillance, the three departments above, plus the Immigration Department.
* Less intrusive covert surveillance would be authorised by designated senior officers of LEAs not below a rank equivalent to that of senior superintendent of police.
The Bill provides for the establishment of an independent oversight authority to review LEAs' compliance with the law and a code of practice to be issued by the Secretary for Security, handle complaints against unlawful interception or covert surveillance, award compensation and submit annual reports to the Chief Executive. The reports setting out information such as the number of authorisations and major categories of offences involved would be tabled in the Legislative Council.
The authority, entitled the Commissioner on Interception of Communications and Surveillance, is proposed to be a sitting or retired judge not below the level of the Court of First Instance of the High Court, to be appointed by the Chief Executive on the recommendation by the Chief Justice.
The Bill provides for further safeguards, including requirements for LEAs to conduct regular internal reviews of their officers' compliance with authorisations granted and the exercise of powers by designated authorising officers. It contains provisions ensuring that products of interception and surveillance are properly handled and disposed of.
"It is in the interest of more effectively protecting our public security and law and order, as well as enhancing the statutory safeguards for privacy, that the Bill should be enacted as soon as possible. We are fully committed to working closely with the Legislative Council in this regard," the spokesman said.
Ends/Wednesday, March 1, 2006
Issued at HKT 19:39
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