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This is a Bill, not an Act. For current law, see the Acts databases.
2002-2003
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Communications
Legislation Amendment Bill (No. 2)
2003
No. ,
2003
(Communications, Information Technology and the
Arts)
A Bill for an Act to amend
legislation related to communications, and for related
purposes
Contents
Administrative Decisions (Judicial Review) Act
1977 3
Australian Security Intelligence Organisation Act
1979 3
Telecommunications Act
1997 4
A Bill for an Act to amend legislation related to
communications, and for related purposes
The Parliament of Australia enacts:
This Act may be cited as the Communications Legislation Amendment Act
(No. 2) 2003.
This Act commences on the day after the day on which it receives the
Royal Assent.
Each Act that is specified in a Schedule to this Act is amended or
repealed as set out in the applicable items in the Schedule concerned, and any
other item in a Schedule to this Act has effect according to its
terms.
Administrative Decisions
(Judicial Review) Act 1977
1 After paragraph (d) of
Schedule 1
Insert:
(daa) decisions of the Attorney-General under section 58A, or
subsection 581(3), of the Telecommunications Act 1997;
Australian Security
Intelligence Organisation Act 1979
2 Section 35 (at the end of the definition of
prescribed administrative action)
Add:
; or (d) the exercise of a power under section 58A, or subsection
581(3), of the Telecommunications Act 1997.
3 After subsection 38(1)
Insert:
(1A) This section does not apply to a security assessment if
section 38A applies to the assessment.
4 After section 38
Insert:
(1) This section applies to an adverse or qualified security assessment in
respect of a person (the assessed person) if the assessment is
given to the Attorney-General in connection with section 58A, or subsection
581(3), of the Telecommunications Act 1997.
(2) Within 14 days after receiving the assessment, the Attorney-General
must:
(a) give to the assessed person a notice in writing, to which a copy of
the assessment is attached, informing the assessed person of the making of the
assessment and containing information, in the form prescribed for the purposes
of subsection 38(1), concerning his or her right to apply to the Tribunal under
this Part; and
(b) if the assessment relates to subsection 581(3) of the
Telecommunications Act 1997 and the assessed person is not the carrier or
carriage service provider referred to in that subsection—notify the
carrier or carriage service provider in writing of the fact that the assessment
has been made.
(3) Subsection (2) does not apply if the Attorney-General is
satisfied that withholding the notice or notices is essential to the security of
the nation.
(4) If the Attorney-General is satisfied that the assessment contains any
matter the disclosure of which would be prejudicial to the interests of
security, then the Attorney-General must exclude that matter from the copy
provided under paragraph (2)(a).
5 Section 7 (paragraph (f) of the
definition of agency)
Omit “Criminal Justice”, substitute “Crime and
Misconduct”.
6 After section 53
Insert:
(1) The ACA must give a copy of the application to the agency
co-ordinator.
(2) For the purposes of sections 56A and 59, the application is taken
not to have been received by the ACA until the copy is received by the agency
co-ordinator.
7 Subsection 55(1)
Omit “28 days”, substitute “20 business
days”.
8 At the end of section 55
Add:
(3) In this section:
business day means a day on which the ACA is open for
business in the Australian Capital Territory and in Victoria.
9 After section 56
Insert:
(1) The ACA must not grant a carrier licence unless it has consulted the
agency co-ordinator about the licence application.
(2) Within 15 business days after the date on which the ACA received the
licence application, the agency co-ordinator may give a written notice to the
ACA, stating that the agency co-ordinator does not require any further
consultation about the application. The notice cannot be revoked.
Note: Under section 53A, the application is treated as
not being received by the ACA until a copy has been received by the agency
co-ordinator.
(3) Within 15 business days after the date on which the ACA received the
licence application, the agency co-ordinator may give a written notice to the
ACA:
(a) stating that, while the notice remains in force, the ACA must not
grant the carrier licence; and
(b) specifying the period during which the notice remains in force (unless
earlier revoked), which period cannot end more than 3 months after the date of
the notice.
However, the agency co-ordinator cannot give such a notice if the agency
co-ordinator has earlier given a notice under subsection (2) in relation to
the application.
(4) At any time while a notice is in force under subsection (3), or
under this subsection, the agency co-ordinator may give a further written notice
to the ACA:
(a) stating that, while the notice remains in force, the ACA must not
grant the carrier licence; and
(b) specifying the period during which the notice remains in force (unless
earlier revoked), which period cannot end more than 3 months after the date of
the notice or more than 12 months after the date of the notice under
subsection (3).
(5) The agency co-ordinator may, by notice in writing to the ACA, revoke a
notice under subsection (3) or (4).
(6) The agency co-ordinator cannot issue a further notice under
subsection (3) or (4) in respect of the application after it has revoked
such a notice.
(7) The ACA must give the applicant a copy of each notice that the ACA
receives from the agency co-ordinator under subsection (3), (4) or
(5).
(8) The ACA must not grant the carrier licence while a notice is in force
under subsection (3) or (4).
(9) In this section:
business day means a day on which the ACA is open for
business in the Australian Capital Territory and in Victoria.
10 After section 58
Insert:
(1) If the Attorney-General, after consulting the Prime Minister and the
Minister administering this Act, considers that the grant of a carrier licence
to a particular person would be prejudicial to security, the Attorney-General
may give a written direction to the ACA not to grant a carrier licence to the
person.
(2) The ACA must comply with a direction under
subsection (1).
(3) While a direction is in force under this section:
(a) the ACA cannot reconsider a non-compulsory refusal to grant a carrier
licence to the person; and
(b) the Administrative Appeals Tribunal cannot consider an application for
review of a non-compulsory refusal to grant a carrier licence to the
person.
(4) If an application for a carrier licence is pending at the time when
the Attorney-General gives a direction to the ACA under this section, then the
application lapses.
Note: Section 73A provides for refund of the
application charge.
(5) In this section:
non-compulsory refusal means a refusal to grant a carrier
licence, other than a refusal that is required by section 56A or this
section.
security has the same meaning as in the Australian
Security Intelligence Organisation Act 1979.
11 Section 59
Repeal the section, substitute:
Deemed refusal of licence application if no decision by
deadline
(1) If the ACA neither grants, nor refuses to grant, a carrier licence
before the end of the deadline day worked out under the following subsections,
then the ACA is taken, at the end of that day, to have refused to grant the
licence.
Case 1: no section 55 request and no section 56A notice in
force
(2) If:
(a) the ACA did not give a section 55 request; and
(b) there is no section 56A notice in force at the end of the 20th
business day after the application day;
then the deadline day is the 20th business day after the application
day.
Case 2: no section 55 request but section 56A notice in
force
(3) If:
(a) the ACA did not give a section 55 request; and
(b) there is a section 56A notice in force at the end of the 20th
business day after the application day;
then the deadline day is the fifth business day after the section 56A
expiration day. For this purpose, the section 56A expiration day
is the first day after the end of that 20th business day on which there
is no notice in force under section 56A.
Case 3: section 55 request complied with and no section 56A
notice in force
(4) If:
(a) the ACA gave a section 55 request; and
(b) the request was complied with; and
(c) there is no section 56A notice in force at the end of the tenth
business day after the day on which the request was complied with;
then the deadline day is the tenth business day after the day on which the
request was complied with.
Case 4: section 55 request complied with and section 56A
notice in force
(5) If:
(a) the ACA gave a section 55 request; and
(b) the request was complied with; and
(c) there is a section 56A notice in force at the end of the tenth
business day after the day on which the request was complied with;
then the deadline day is the fifth business day after the section 56A
expiration day. For this purpose, the section 56A expiration day
is the first day after the end of that tenth business day on which there
is no notice in force under section 56A.
Case 5: section 55 request not complied with and no
section 56A notice in force
(6) If:
(a) the ACA gave a section 55 request; and
(b) the request was not complied with; and
(c) there is no section 56A notice in force at the end of the tenth
business day after the day specified in the section 55 request;
then the deadline day is the tenth business day after the day specified in
the section 55 request.
Case 6: section 55 request not complied with and section 56A
notice in force
(7) If:
(a) the ACA gave a section 55 request; and
(b) the request was not complied with; and
(c) there is a section 56A notice in force at the end of the tenth
business day after the day specified in the section 55 request;
then the deadline day is the fifth business day after the section 56A
expiration day. For this purpose, the section 56A expiration day
is the first day after the end of that tenth business day on which there
is no notice in force under section 56A.
(8) In this section:
application day means the day on which the ACA received the
licence application.
Note: Under section 53A, the application is treated as
not being received by the ACA until a copy has been received by the agency
co-ordinator.
business day means a day on which the ACA is open for
business in the Australian Capital Territory and in Victoria.
section 55 request means a request under section 55
in relation to the licence application.
section 56A notice means a notice under subsection
56A(3) or (4) in relation to the licence application.
12 After section 73
Insert:
(1) This section applies to application charge that has been paid in
respect of an application for a carrier licence if:
(a) the application lapses under section 58A; or
(b) the application has been refused and there is no longer any
possibility of the refusal decision being set aside.
(2) The ACA, on behalf of the Commonwealth, must refund the application
charge to the applicant.
(3) The Consolidated Revenue Fund is appropriated for payments under this
section.
(4) In this section:
application charge means charge imposed by Part 2 of the
Telecommunications (Carrier Licence Charges) Act 1997.
13 Subsection 282(10)
Insert:
chief executive officer includes an acting chief executive
officer.
14 Subsection 282(10)
Insert:
Commissioner of Police includes an acting Commissioner of
Police.
15 Subsection 282(10)
Insert:
Deputy Commissioner of Police includes an acting Deputy
Commissioner of Police.
16 Subsection 282(10) (paragraph (f) of the
definition of criminal law-enforcement agency)
Omit “Criminal Justice”, substitute “Crime and
Misconduct”.
17 Subsection 282(10) (at the end of the definition
of officer)
Add:
; or (c) a person whose services have been made available to the
agency.
18 Subsection 282(10) (paragraphs (a) to (d) of
the definition of senior officer)
Repeal the paragraphs, substitute:
(a) if the agency is the Australian Federal Police:
(i) the Commissioner of Police referred to in section 6 of the
Australian Federal Police Act 1979; or
(ii) a Deputy Commissioner of Police referred to in section 6 of the
Australian Federal Police Act 1979; or
(iii) a senior executive AFP employee (being an AFP employee in respect of
whom a declaration is in force under section 25 of the Australian
Federal Police Act 1979) who is authorised in writing by the Commissioner of
Police for the purposes of this subparagraph; or
(iv) an AFP employee (being an employee in respect of whom a declaration
is in force under section 40B of the Australian Federal Police Act
1979) who is employed, or is acting, in an office or position in the
Australian Federal Police which is involved in the management of the Australian
Federal Police and which has been nominated in writing by the Commissioner of
Police for the purposes of this subparagraph; or
(v) the holder or occupier from time to time of an office or position in
the Australian Federal Police which is involved in the management of the
Australian Federal Police and which has been nominated in writing by the
Commissioner of Police for the purposes of this subparagraph; or
(b) if the agency is the police force or service of a State or
Territory:
(i) the Commissioner of Police (however designated) of the State or
Territory; or
(ii) a Deputy Commissioner of Police (however designated) of the State or
Territory; or
(iii) an officer of the police force or service whose rank is that of
inspector (or equivalent) or above and who is authorised in writing by the
Commissioner of Police for the purposes of this subparagraph; or
(iv) an officer who holds, or is acting in, an office or position in the
police force or service who has a rank referred to in subparagraph (iii),
being an office or position which has been nominated in writing by the
Commissioner of Police for the purposes of this subparagraph; or
(v) an officer of the police force or service who holds, or is acting in,
an office or position in the police force or service which is involved in the
management of the police force or service and which has been nominated in
writing by the Commissioner of Police for the purposes of this subparagraph;
or
(c) if the agency is neither the Australian Federal Police nor the police
force or service of a State or Territory:
(i) the chief executive officer or an acting chief executive officer of
the agency; or
(ii) an officer of the agency (by whatever name called) who holds, or is
acting in, an office or position in the agency which is involved in the
management of the agency and which has been nominated in writing by the chief
executive officer of the agency for the purposes of this subparagraph;
or
(d) if a group of officers of the agency perform their duties at premises
that are:
(i) occupied by the agency; and
(ii) located at a place outside the boundaries of a capital city of a
State or internal Territory;
the most senior of that group of officers, being a person who has been
nominated in writing by the Commissioner of Police, or other chief executive
officer, of the agency for the purposes of this paragraph.
19 At the end of
section 313
Add:
(8) The reference in subsection (7) to giving help by way of the
provision of interception services includes a reference to giving help by
providing relevant information about any communication that is lawfully
intercepted under a warrant.
20 Subsection 324(2)
Repeal the subsection, substitute:
(2) The person must ensure that the network, facility or carriage service
has the capability to enable a communication passing over the network, facility
or carriage service to be intercepted in accordance with a warrant issued under
the Telecommunications (Interception) Act 1979.
21 At the end of
section 326
Add:
(4) If:
(a) a person applies in writing to the agency co-ordinator for an
exemption under subsection (1) from all the obligations, or from particular
obligations, imposed on the person under Subdivision B in so far as those
obligations relate to a specified carriage service; and
(b) the agency co-ordinator does not make, and communicate to the
applicant, a decision granting, or refusing to grant, the exemption within 60
days after the day on which the agency co-ordinator receives the
application;
the agency co-ordinator is taken, at the end of that period of 60 days, to
have granted an exemption to the applicant from the obligations to which the
application relates in so far as those obligations relate to the carriage
service.
(5) An exemption that is taken under subsection (4) to have been
granted to a person who applied for an exemption under subsection (1) has
effect only until the agency co-ordinator makes, and communicates to the person,
a decision on the application.
22 Subsection 329(1)
After “written instrument”, insert “, signed by the chief
executive officer of the carrier or provider or by a person authorised by the
chief executive officer to sign the instrument,”.
23 Paragraph 329(1)(a)
Repeal the paragraph, substitute:
(a) a statement of the policies of the carrier or provider in relation to
interception generally and of its strategies for compliance with its legal
obligation to provide interception capabilities in relation to each carriage
service that involves, or will involve, the use of a controlled network, or
controlled facility, of the carrier or provider; and
(aa) a statement of the compliance by the carrier or provider with its
legal obligation referred to in paragraph (a); and
24 Section 330
Repeal the section, substitute:
(1) A carrier must lodge an IC plan with the ACA and the agency
co-ordinator:
(a) unless paragraph (b) or (c) applies—by 1 July in the
calendar year following the calendar year in which this section commences and by
each following 1 July; or
(b) if the carrier became a carrier before the commencement of this
section and had not lodged an IC plan before that time—within 90 days
after the commencement of this section and by each following 1 July;
or
(c) if the carrier becomes a carrier after the commencement of this
section—within 90 days after the day of so becoming a carrier and by each
following 1 July.
(2) Despite subsection (1), a carrier who lodges a first IC plan less
than 120 days before the next following 1 July is not obliged under this
section to lodge another IC plan before the first anniversary of that next
following 1 July.
25 Subsections 331(1) and (2)
Repeal the subsections, substitute:
(1) A carriage service provider nominated under subsection (3) must
lodge an IC plan with the ACA and the agency co-ordinator:
(a) unless paragraph (b) or (c) applies—by 1 July in the
calendar year following the calendar year in which this section commences and by
each following 1 July; or
(b) if the nominated carriage service provider became a nominated carriage
service provider before the commencement of this section and had not lodged an
IC plan before that time—within 90 days after the commencement of this
section and by each following 1 July; or
(c) if the nominated carriage service provider becomes a nominated
carriage service provider after the commencement of this section—within 90
days after the day of so becoming a nominated carrier and by each following
1 July.
(2) Despite subsection (1), a nominated carriage service provider who
lodges a first IC plan less than 120 days before the next following 1 July
is not obliged under this section to lodge another IC plan before the first
anniversary of that next following 1 July.
26 Part 34 (heading)
Repeal the heading, substitute:
27 Subsection 581(3)
Repeal the subsection, substitute:
(3) If:
(a) a person who is a carrier or carriage service provider proposes to
use, or uses, for the person’s own requirements or benefit, or proposes to
supply, or supplies, to another person, one or more carriage services;
and
(b) the Attorney-General, after consulting the Prime Minister and the
Minister administering this Act, considers that the proposed use or supply would
be, or the use or supply is, as the case may be, prejudicial to
security;
the Attorney-General may give to the carrier or carriage service provider a
written direction not to use or supply, or to cease using or supplying, as the
case may be, the carriage service, or all of the carriage services, either
generally or to a particular person or particular persons.
(4) A person must comply with a direction given to the person under
subsection (1) or (3).
(5) In this section:
security has the same meaning as in the Australian
Security Intelligence Organisation Act 1979.
28 At the end of paragraph 1(a) of
Schedule 4
Add “(other than a decision made in compliance with section 56A
or 58A)”.