TELECOMMUNICATIONS (INTERCEPTION AND ACCESS) AMENDMENT BILL 2010

i Telecommunications (Interception and Access) Amendment Bill 2009 No. , 2009

Contents

1 Short

title

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2 Commencement

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3 Schedule(s)

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Schedule 1--Network protection

Telecommunications (Interception and Access) Act 1979

Schedule 2--Other amendments

Part 1--Amendments

Telecommunications (Interception and Access) Act 1979

Part 2--Validation, application and transitional provisions

Network protection Schedule 1

Telecommunications (Interception and Access) Amendment Bill 2009 No. , 2009 3

Schedule 1--Network protection

Telecommunications (Interception and Access) Act 1979

1 Subsection 5(1)

Insert:

appropriately used, in relation to a computer network that is

operated by, or on behalf of, a Commonwealth agency, security

authority or eligible authority of a State, has the meaning given by

section 6AAA.

2 Subsection 5(1)

Insert:

network protection duties, in relation to a computer network,

means duties relating to:

(a) the operation, protection or maintenance of the network; or

(b) if the network is operated by, or on behalf of, a

Commonwealth agency, security authority or eligible

authority of a State--ensuring that the network is

appropriately used by employees, office holders or

contractors of the agency or authority.

3 Subsection 5(1)

Insert:

office holder means a person who holds, occupies or performs the

duties of an office, position or appointment.

4 Subsection 5(1)

Insert:

responsible person for a computer network means:

(a) if an individual operates the network, or the network is

operated on behalf of an individual--that individual; or

(b) if a body (whether or not a body corporate) operates the

network, or the network is operated on behalf of a body

(whether or not a body corporate):

Schedule 1 Network protection

4 Telecommunications (Interception and Access) Amendment Bill 2009 No. , 2009

(i) the head (however described) of the body, or a person

acting as that head; or

(ii) if one or more positions are nominated by that head, or

the person acting as that head, for the purposes of this

subparagraph--each person who holds, or is acting in,

such a position.

5 Subsection 5F(1)

Omit "(1)".

6 Subsections 5F(2) and (3)

Repeal the subsections.

7 Subsection 5G(1)

Omit "(1)".

8 Subsections 5G(2), (3) and (4)

Repeal the subsections.

9 After section 6

Insert:

6AAA When a computer network is appropriately used by an

employee etc. of a Commonwealth agency etc.

For the purposes of this Act, if a computer network is operated by,

or on behalf of, a Commonwealth agency, security authority or

eligible authority of a State, the network is appropriately used by

an employee, office holder or contractor of the agency or authority

if:

(a) the employee, office holder or contractor has undertaken, in

writing, to use the network in accordance with any conditions

specified, in writing, by the agency or authority; and

(b) those conditions are reasonable; and

conditions when using the network.

10 At the end of paragraph 6E(2)(b)

Add "or 63E".

Network protection Schedule 1

Telecommunications (Interception and Access) Amendment Bill 2009 No. , 2009 5

11 After paragraph 7(2)(aa)

Insert:

(aaa) the interception of a communication by a person if:

(i) the person is authorised, in writing, by a responsible

person for a computer network to engage in network

protection duties in relation to the network; and

(ii) it is reasonably necessary for the person to intercept the

communication in order to perform those duties

effectively; or

12 Subsection 7(2A)

Omit "and (aa)", substitute ", (aa) and (aaa)".

13 After subsection 7(2A)

Insert:

(3) Paragraph (2)(aaa) does not apply to a voice communication in the

form of speech (including a communication that involves a

recorded or synthetic voice).

14 After subsection 35(1)

Insert:

(1A) Paragraphs (1)(f) and (g) do not apply to a restricted record that is

a record of a communication that was intercepted under paragraph

7(2)(aaa).

15 After section 63B

Insert:

63C Dealing in information for network protection purposes etc.

(1) Subject to subsection (3), a person engaged in network protection

duties in relation to a computer network may, in performing those

duties, communicate or make use of, or cause to be communicated,

lawfully intercepted information that was obtained by intercepting

a communication under paragraph 7(2)(aaa).

(2) Subject to subsection (3), a person engaged in network protection

duties in relation to a computer network may communicate, or

cause to be communicated, to the following persons lawfully

Schedule 1 Network protection

6 Telecommunications (Interception and Access) Amendment Bill 2009 No. , 2009

intercepted information that was obtained by intercepting a

communication under paragraph 7(2)(aaa):

(a) a responsible person for the network;

(b) another person if the information is reasonably necessary to

enable the other person to perform the other person's network

protection duties in relation to the network.

(3) A person must not communicate or make use of, or cause to be

communicated, lawfully intercepted information under

subsection (1) or (2) if the information was obtained by converting

a communication intercepted under paragraph 7(2)(aaa) into a

voice communication in the form of speech (including a

communication that involves a recorded or synthetic voice).

63D Dealing in information for disciplinary purposes

(1) This section applies to a person engaged in network protection

duties in relation to a computer network if:

(a) the network is operated by, or on behalf of, a Commonwealth

agency, security authority or eligible authority of a State; and

(b) the duties are of a kind referred to in paragraph (b) of the

definition of network protection duties in subsection 5(1).

(2) Subject to subsections (3) and (4), the person may communicate or

make use of, or cause to be communicated, lawfully intercepted

information that was obtained by intercepting a communication

under paragraph 7(2)(aaa) if the communication or use is for the

purpose of:

(a) determining whether disciplinary action should be taken in

relation to a use of the network by an employee, office holder

or contractor of the agency or authority; or

(b) taking disciplinary action in relation to a use of the network

by such an employee, office holder or contractor in a case

where the use is not an appropriate use of the network by that

employee, office holder or contractor; or

Note:

See section 6AAA for when a computer network is appropriately used

by such an employee, office holder or contractor.

(3) A person must not communicate or make use of, or cause to be

communicated, lawfully intercepted information under

subsection (2) if the information was obtained by converting a

Network protection Schedule 1

Telecommunications (Interception and Access) Amendment Bill 2009 No. , 2009 7

communication intercepted under paragraph 7(2)(aaa) into a voice

communication in the form of speech (including a communication

that involves a recorded or synthetic voice).

(4) A person must not communicate or make use of, or cause to be

communicated, lawfully intercepted information for a purpose

referred to in subsection (2) if the person would contravene another

law of the Commonwealth, or a law of a State or Territory, in

doing so.

63E Responsible person for a computer network may communicate

information to an agency

A responsible person for a computer network may communicate

lawfully intercepted information (other than foreign intelligence

information) to an officer of an agency if:

(a) the information was communicated to the responsible person

under paragraph 63C(2)(a); and

(b) the responsible person suspects, on reasonable grounds, that

the information is relevant to determining whether another

person has committed a prescribed offence.

16 Section 72

After "section 63B,", insert "63C, 63D, 63E,".

17 Section 73

Omit "A person", substitute "(1) Subject to subsections (2) and (3), a

person".

18 Section 73

After "subsection 63B(2)", insert ", 63C(2) or 63D(2)".

19 Section 73

Omit "this section", substitute "this subsection".

20 At the end of section 73

Add:

(2) If a person to whom information has been communicated in

accordance with subsection 63D(2) communicates the information

to another person (the recipient) under subsection (1) of this

Schedule 1 Network protection

8 Telecommunications (Interception and Access) Amendment Bill 2009 No. , 2009

section, the recipient must not communicate, use, or make a record

of, the information under subsection (1) of this section if the

recipient would contravene another law of the Commonwealth, or a

law of a State or Territory, in doing so.

(3) If the recipient communicates that information to a third person

under subsection (1) of this section, the third person must not

communicate, use, or make a record of, the information under that

subsection if the third person would contravene another law of the

Commonwealth, or a law of a State or Territory, in doing so.

21 At the end of section 79

Add:

(3) This section does not apply to a restricted record that is a record of

a communication that was intercepted under paragraph 7(2)(aaa).

22 At the end of Part 2-6

Add:

79A Responsible person for a computer network must ensure

restricted records are destroyed

(1) This section applies if:

(a) a restricted record is a record of a communication that was

intercepted under paragraph 7(2)(aaa); and

(b) the restricted record is in the possession of:

(i) a responsible person for the computer network

concerned; or

(ii) the individual or body (whether or not a body corporate)

who operates the network, or on whose behalf the

network is operated; or

(iii) a person engaged in network protection duties in

relation to the network.

(2) The responsible person must cause the restricted record to be

destroyed as soon as practicable after becoming satisfied that the

restricted record is not likely to be required:

(a) for the purpose of enabling a person to perform the person's

network protection duties in relation to the network; or

Network protection Schedule 1

Telecommunications (Interception and Access) Amendment Bill 2009 No. , 2009 9

(b) if the network is operated by, or on behalf of, a

Commonwealth agency, security authority or eligible

authority of a State--for any of the following purposes:

(i) determining whether disciplinary action should be taken

in relation to a use of the network by an employee,

office holder or contractor of the agency or authority;

(ii) taking disciplinary action in relation to a use of the

network by such an employee, office holder or

contractor in a case where the use is not an appropriate

use of the network by that employee, office holder or

contractor;

(iii) reviewing a decision to take such disciplinary action.

23 Paragraph 81(1)(d)

After "each restricted record", insert "(other than a restricted record that

is a record of a communication that was intercepted under paragraph

7(2)(aaa))".

Schedule 2 Other amendments

Part 1 Amendments

10 Telecommunications (Interception and Access) Amendment Bill 2009 No. , 2009

Schedule 2--Other amendments

Part 1--Amendments

Telecommunications (Interception and Access) Act 1979

1 Subsection 5(1) (at the end of subparagraphs (b)(i), (ii), (iia)

and (iib) of the definition of permitted purpose)

Add "or".

2 Subsection 5(1) (at the end of paragraph (b) of the

definition of permitted purpose)

Add:

(v) the performance of a function or duty, or the exercise of

a power, by a person, court or other body under, or in

relation to a matter arising under, Division 104 of the

Criminal Code; or

(vi) the performance of a function or duty, or the exercise of

a power, by a person, court, tribunal or other body

under, or in relation to a matter arising under,

Division 105 of the Criminal Code, so far as the

function, duty or power relates to a preventative

detention order; or

3 Subsection 5(1) (subparagraph (e)(i) of the definition of

permitted purpose)

Omit "of an officer of the New South Wales Police Service", substitute

"(within the meaning of section 5 of that Act) of a police officer (within

the meaning of that Act)".

4 Subsection 5(1) (after subparagraph (e)(i) of the definition

of permitted purpose)

Insert:

(ia) an investigation under the Police Integrity Commission

Act of corrupt conduct (within the meaning of

section 5A of that Act) of an administrative officer

(within the meaning of that Act); or

(ib) an investigation under the Police Integrity Commission

Act of misconduct (within the meaning of section 5B of

Other amendments Schedule 2

Amendments Part 1

Telecommunications (Interception and Access) Amendment Bill 2009 No. , 2009 11

that Act) of a Crime Commission officer (within the

meaning of that Act); or

5 Subsection 5(1) (subparagraph (e)(ii) of the definition of

permitted purpose)

Omit "such an investigation", substitute "an investigation covered by

subparagraph (i), (ia) or (ib)".

6 Subsection 5(1) (subparagraphs (e)(iii) and (iv) of the

definition of permitted purpose)

Omit "Service", substitute "Force".

7 Subsection 5(1)

Insert:

preventative detention order has the same meaning as in Part 5.3

of the Criminal Code.

8 After paragraph 5B(1)(ba)

Insert:

(bb) a proceeding under, or a proceeding relating to a matter

arising under, Division 104 of the Criminal Code; or

(bc) a proceeding under, or a proceeding relating to a matter

arising under, Division 105 of the Criminal Code, so far as

the proceeding relates to a preventative detention order; or

9 Subsection 18(1)

Repeal the subsection, substitute:

(1)

The

following:

(a) the Managing Director of a carrier;

(b) the secretary of a carrier;

purposes of this paragraph by the Managing Director or the

secretary of the carrier;

may issue a written certificate signed by him or her setting out such

facts as he or she considers relevant with respect to acts or things

done by, or in relation to, employees of the carrier in order to

enable a warrant to be executed.

Schedule 2 Other amendments

Part 1 Amendments

12 Telecommunications (Interception and Access) Amendment Bill 2009 No. , 2009

10 Subsection 18(2)

After "secretary", insert ", or an employee,".

11 Subsection 129(1)

Repeal the subsection, substitute:

(1)

The

following:

(a) the Managing Director of a carrier or a body corporate of

which the carrier is a subsidiary;

(b) the secretary of a carrier or a body corporate of which the

carrier is a subsidiary;

purposes of this paragraph by a person referred to in

paragraph (a) or (b);

may issue a written certificate signed by him or her setting out such

facts as he or she considers relevant with respect to acts or things

done by, or in relation to, employees of the carrier in order to

enable a warrant to be executed.

12 Subsection 129(2)

Omit "the Managing Director or secretary of a carrier, or of a body

corporate of which the carrier is a subsidiary", substitute "a person

referred to in paragraph (a), (b) or (c) of that subsection".

13 After section 185

Insert:

185A Evidentiary certificates relating to acts by carriers

(1)

The

following:

(a) the Managing Director of a carrier or a body corporate of

which the carrier is a subsidiary;

(b) the secretary of a carrier or a body corporate of which the

carrier is a subsidiary;

purposes of this paragraph by a person referred to in

paragraph (a) or (b);

may issue a written certificate signed by him or her setting out such

facts as he or she considers relevant with respect to acts or things

done by, or in relation to, employees of the carrier in order to

Other amendments Schedule 2

Amendments Part 1

Telecommunications (Interception and Access) Amendment Bill 2009 No. , 2009 13

enable the disclosure of information or a document covered by an

authorisation in force under a provision of Division 3 or 4 of

Part 4-1.

(2) A document purporting to be a certificate issued under

subsection (1) and purporting to be signed by a person referred to

in paragraph (a), (b) or (c) of that subsection:

(a) is to be received in evidence in an exempt proceeding

without further proof; and

(b) is, in an exempt proceeding, conclusive evidence of the

matters stated in the document.

(3) For the purposes of this section, the question whether a body

corporate is a subsidiary of another body corporate is to be

determined in the same manner as the question is determined under

the Corporations Act 2001.

185B Evidentiary certificates relating to acts by the Organisation

(1) The Director-General of Security or the Deputy Director-General

of Security may issue a written certificate signed by him or her

setting out such facts as he or she considers relevant with respect

to:

(a) anything done by an officer or employee of the Organisation

in connection with the disclosure of information or a

document covered by an authorisation in force under a

provision of Division 3 or 4 of Part 4-1; or

(b) anything done by an officer or employee of the Organisation

in connection with:

(i) the communication by a person to another person of

information, or information contained in a document,

covered by such an authorisation; or

(ii) the making use of such information; or

(iii) the making of a record of such information; or

(iv) the custody of a record of such information; or

(v) the giving in evidence of such information.

(2) A document purporting to be a certificate issued under

subsection (1) by the Director-General of Security or the Deputy

Director-General of Security and to be signed by him or her:

Schedule 2 Other amendments

Part 1 Amendments

14 Telecommunications (Interception and Access) Amendment Bill 2009 No. , 2009

(a) is to be received in evidence in an exempt proceeding

without further proof; and

(b) is, in an exempt proceeding, prima facie evidence of the

matters stated in the document.

185C Evidentiary certificates relating to acts by enforcement

agencies

(1) A certifying officer of an enforcement agency may issue a written

certificate signed by him or her setting out such facts as he or she

considers relevant with respect to:

(a) anything done by an officer or staff member of the agency in

connection with the disclosure of information or a document

covered by an authorisation in force under a provision of

Division 3 or 4 of Part 4-1; or

(b) anything done by an officer or staff member of the agency in

connection with:

(i) the communication by a person to another person of

information, or information contained in a document,

covered by such an authorisation; or

(ii) the making use of such information; or

(iii) the making of a record of such information; or

(iv) the custody of a record of such information; or

(v) the giving in evidence of such information.

(2) A document purporting to be a certificate issued under

subsection (1) by a certifying officer of an enforcement agency and

to be signed by him or her:

(a) is to be received in evidence in an exempt proceeding

without further proof; and

(b) is, in an exempt proceeding, prima facie evidence of the

matters stated in the document.

Other amendments Schedule 2

Validation, application and transitional provisions Part 2

Telecommunications (Interception and Access) Amendment Bill 2009 No. , 2009 15

Part 2--Validation, application and transitional

provisions

14 Validation of the dealing with information by the

Australian Federal Police

If:

(a) before the commencement of this item, an officer or staff

member of the Australian Federal Police communicated to

another person, made use of, or made a record of,

information of a kind referred to in section 67 of the

Telecommunications (Interception and Access) Act 1979; and

(b) apart from this item:

(i) the officer or staff member would have contravened

section 63 of that Act by communicating, using or

recording that information; and

(ii) the officer or staff member would not have contravened

that section if subparagraphs (b)(v) and (vi) of the

definition of permitted purpose in subsection 5(1) of

that Act had been in force;

the officer or staff member is taken not to have contravened that section

by communicating, using or recording that information.

15 Application--investigations

Subparagraphs (e)(ia) and (ib) of the definition of permitted purpose in

subsection 5(1) of the Telecommunications (Interception and Access)

Act 1979, as inserted by this Schedule, apply in relation to an

investigation that begins after the commencement of this item whether

or not the conduct or misconduct under investigation occurred before,

on or after that commencement.

16 Transitional--previously issued evidentiary certificates

(1)

This item applies to a certificate if:

(a) the certificate was issued under subsection 18(1) or 129(1) of

the Telecommunications (Interception and Access) Act 1979

before the commencement of this item; and

(b) the certificate was in force immediately before that

commencement.

Schedule 2 Other amendments

Part 2 Validation, application and transitional provisions

16 Telecommunications (Interception and Access) Amendment Bill 2009 No. , 2009

(2)

The certificate has effect, after that commencement, as if it had been

issued under that provision of that Act as inserted by this Schedule.

17 Application--issue of evidentiary certificates

(1)

Sections 18 and 129 of the Telecommunications (Interception and

Access) Act 1979, as amended by this Schedule, apply in relation to acts

or things done before, on or after the commencement of this item.

(2)

Sections 185A, 185B and 185C of that Act, as inserted by this

Schedule, apply in relation to an authorisation made under Part 4.1 of

that Act before, on or after the commencement of this item.

Commonwealth of Australia Bills

TELECOMMUNICATIONS (INTERCEPTION AND ACCESS) AMENDMENT BILL 2010