Commonwealth of Australia Bills
[Index]
[Search]
[Download]
[Related Items]
[Help]
This is a Bill, not an Act. For current law, see the Acts databases.
TELECOMMUNICATIONS INTERCEPTION AND INTELLIGENCE SERVICES LEGISLATION AMENDMENT BILL 2011
2010
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Telecommunications Interception and
Intelligence Services Legislation
Amendment Bill 2010
No. , 2010
(Attorney-General)
A Bill for an Act to amend the law relating to
telecommunications interception and access, and
intelligence services, and for related purposes
i Telecommunications Interception and Intelligence Services Legislation Amendment Bill
2010 No. , 2010
Contents
1 Short
title
...........................................................................................
1
2 Commencement
.................................................................................
1
3 Schedule(s)
........................................................................................
2
Schedule 1--Exercise of warrant powers
3
Telecommunications (Interception and Access) Act 1979
3
Schedule 2--Requirement to inform of proposed changes
11
Telecommunications (Interception and Access) Act 1979
11
Schedule 3--Disclosure of telecommunications data relating to
missing persons
15
Telecommunications (Interception and Access) Act 1979
15
Schedule 4--Stored communications warrants in relation to
victims of serious contraventions
18
Telecommunications (Interception and Access) Act 1979
18
Schedule 5--Notifying Managing Directors of warrants
19
Telecommunications (Interception and Access) Act 1979
19
Schedule 6--Co-operation, assistance and communication
between intelligence agencies
24
Australian Security Intelligence Organisation Act 1979
24
Intelligence Services Act 2001
29
Telecommunications (Interception and Access) Act 1979
31
Schedule 7--Amendments to section 5 of the
Telecommunications (Interception and Access)
Act 1979
32
Telecommunications (Interception and Access) Act 1979
32
Telecommunications Interception and Intelligence Services Legislation Amendment Bill 2010
No. , 2010 1
A Bill for an Act to amend the law relating to
1
telecommunications interception and access, and
2
intelligence services, and for related purposes
3
The Parliament of Australia enacts:
4
1 Short title
5
This Act may be cited as the Telecommunications Interception and
6
Intelligence Services Legislation Amendment Act 2010.
7
2 Commencement
8
This Act commences on the day after this Act receives the Royal
9
Assent.
10
2 Telecommunications Interception and Intelligence Services Legislation Amendment Bill
2010 No. , 2010
3 Schedule(s)
1
Each Act that is specified in a Schedule to this Act is amended or
2
repealed as set out in the applicable items in the Schedule
3
concerned, and any other item in a Schedule to this Act has effect
4
according to its terms.
5
6
Exercise of warrant powers Schedule 1
Telecommunications Interception and Intelligence Services Legislation Amendment Bill 2010
No. , 2010 3
Schedule 1--Exercise of warrant powers
1
2
Telecommunications (Interception and Access) Act 1979
3
1 Paragraph 52(1)(a)
4
Omit "forthwith", substitute "immediately".
5
2 Subsection 52(2)
6
Omit "cause a copy of the instrument of revocation to be given as soon
7
as practicable", substitute ", as soon as practicable, give a copy of the
8
instrument of revocation".
9
3 Subsection 52(3)
10
Repeal the subsection, substitute:
11
(3)
If:
12
(a) a warrant has been issued to an agency; and
13
(b) another agency or the Organisation is exercising authority
14
under that warrant (see section 55); and
15
(c) the warrant is revoked under subsection (1);
16
the chief officer of the agency to which the warrant was issued
17
must:
18
(d) immediately inform the chief officer of the other agency or
19
the Director-General of Security (as the case requires) of the
20
revocation; and
21
(e) give a copy of the instrument of revocation to the person
22
referred to in paragraph (d) as soon as practicable.
23
4 Subsection 55(1)
24
Omit "an officer or staff member of an agency", substitute "a person".
25
5 Subsection 55(3)
26
Repeal the subsection, substitute:
27
(3) The chief officer of an agency, or an officer of an agency in
28
relation to whom an appointment under subsection (4) is in force,
29
may approve any of the following persons to exercise the authority
30
conferred by warrants (or classes of warrants) issued to the agency:
31
Schedule 1 Exercise of warrant powers
4 Telecommunications Interception and Intelligence Services Legislation Amendment Bill
2010 No. , 2010
(a) officers (or classes of officers) of the agency or another
1
agency;
2
(b) staff members (or classes of staff members) of the agency or
3
another agency;
4
(c) officers or employees (or classes of officers or employees) of
5
the Organisation;
6
(d) persons assisting the Organisation in the performance of its
7
functions.
8
6 Subsection 55(5)
9
Omit "an officer or staff member of an agency", substitute "a person".
10
7 At the end of section 55
11
Add:
12
(8) To avoid doubt, the Organisation exercises authority under a
13
warrant even if a person assisting the Organisation in the
14
performance of its functions, who is not an officer or employee of
15
the Organisation, is approved to exercise that authority under
16
paragraph (3)(d).
17
8 Subsections 57(1), (2) and (3)
18
Repeal the subsections, substitute:
19
(1) The chief officer of an agency:
20
(a) may, at any time, by signed writing, revoke a warrant issued
21
to the agency; and
22
(b) must do so, if he or she is satisfied that the grounds on which
23
the warrant was issued to the agency have ceased to exist.
24
(2) If another agency or the Organisation is exercising authority under
25
the warrant, then before revoking the warrant, the chief officer
26
must inform the chief officer of the other agency or the
27
Director-General of Security (as the case requires) of the proposed
28
revocation.
29
(3) After revoking the warrant, the chief officer must:
30
(a) if subsection (2) applies--immediately inform the chief
31
officer of the other agency or the Director-General of
32
Security (as the case requires) of the revocation; and
33
Exercise of warrant powers Schedule 1
Telecommunications Interception and Intelligence Services Legislation Amendment Bill 2010
No. , 2010 5
(b) in any case--give a copy of the instrument of revocation to
1
the Secretary of the Department as soon as practicable.
2
9 Subsection 57(4)
3
Omit "subsection (2)", substitute "paragraph (1)(a)".
4
10 Subsection 58(1)
5
Omit "forthwith", substitute "immediately".
6
11 Subsection 58(2)
7
After "agency" (first occurring), insert "or the Director-General of
8
Security".
9
12 Subsection 58(2)
10
Omit "the chief officer of the agency shall forthwith", substitute "he or
11
she must immediately".
12
13 Subsection 58(2)
13
After "agency" (third occurring), insert "or the Organisation (as the case
14
requires)".
15
14 Section 59
16
Omit "or (2)".
17
15 Paragraphs 60(1)(c), (3)(c) and (5)(c)
18
Omit "forthwith", substitute "immediately".
19
16 After subsection 61(4)
20
Insert:
21
(4A) A certifying person may issue a written certificate signed by him or
22
her setting out such facts as he or she considers relevant with
23
respect to:
24
(a) anything done by a person referred to in paragraph 55(3)(c)
25
or (d) in connection with the execution of a Part 2-5 warrant;
26
or
27
(b) anything done by a person referred to in paragraph 55(3)(c)
28
or (d) in connection with:
29
(i) the communication by a person to another person of; or
30
Schedule 1 Exercise of warrant powers
6 Telecommunications Interception and Intelligence Services Legislation Amendment Bill
2010 No. , 2010
(ii) the making use of; or
1
(iii) the making of a record of; or
2
(iv) the custody of a record of; or
3
(v) the giving in evidence of;
4
information obtained by the execution of such a warrant.
5
17 Subsection 61(5)
6
Repeal the subsection, substitute:
7
(5) A document purporting to be a certificate issued under
8
subsection (4) or (4A) by a certifying officer of an agency, or a
9
certifying person, and to be signed by him or her:
10
(a) is to be received in evidence in an exempt proceeding
11
without further proof; and
12
(b) in an exempt proceeding, is prima facie evidence of the
13
matters stated in the document.
14
18 At the end of section 64
15
Add:
16
(3) Subsections (1) and (2) do not apply to information:
17
(a) obtained by a person referred to in paragraph 55(3)(c) or (d)
18
by intercepting a communication when exercising authority
19
under a warrant issued to an agency; or
20
(b) communicated, in accordance with section 66, to a person
21
referred to in paragraph 55(3)(c); or
22
(c) that is interception warrant information in relation to a
23
warrant issued to an agency;
24
unless the information has been communicated to the
25
Director-General of Security under section 68.
26
(4) However, a person referred to in paragraph 55(3)(c) or (d) may
27
communicate to another person, make use of, or make a record of
28
information referred to in paragraph (3)(a), (b) or (c) of this
29
section, that has not been communicated to the Director-General of
30
Security under section 68, for a purpose or purposes connected
31
with the investigation to which the warrant, under which the
32
information was obtained, relates, and for no other purpose.
33
19 At the end of section 65
34
Exercise of warrant powers Schedule 1
Telecommunications Interception and Intelligence Services Legislation Amendment Bill 2010
No. , 2010 7
Add:
1
(3) Subsections (1) and (2) do not apply to information:
2
(a) obtained by a person referred to in paragraph 55(3)(c) or (d)
3
by intercepting a communication when exercising authority
4
under a warrant issued to an agency; or
5
(b) communicated, in accordance with section 66, to a person
6
referred to in paragraph 55(3)(c); or
7
(c) that is interception warrant information in relation to a
8
warrant issued to an agency;
9
unless the information has been communicated to the
10
Director-General of Security under section 68.
11
Note:
See subsection 64(4) for when the Director-General of Security may
12
communicate information, referred to in paragraph (3)(a), (b) or (c) of
13
this section, that has not been communicated under section 68.
14
20 Paragraph 66(1)(b)
15
Repeal the paragraph, substitute:
16
(b) a person in relation to whom an authorisation under
17
subsection (2) is in force in relation to the warrant.
18
Note:
The heading to section 66 is altered by omitting "agency to which warrant was
19
issued" and substituting "officer who applied for warrant or authorised person".
20
21 Subsection 66(2)
21
Repeal the subsection, substitute:
22
(2) The chief officer of an agency, or an authorising officer of an
23
agency for whom an appointment under subsection (4) is in force,
24
may authorise in writing a person (or class of person) referred to in
25
any of paragraphs 55(3)(a) to (c) to receive information obtained
26
by interceptions under warrants (or classes of warrants) issued to
27
the agency.
28
(3) The chief officer, or an authorising officer, of an agency may make
29
an authorisation under subsection (2) in relation to a person (or
30
class of person) who is not an officer or staff member of that
31
agency only for a purpose or purposes connected with an
32
investigation to which a warrant issued to that agency relates.
33
Schedule 1 Exercise of warrant powers
8 Telecommunications Interception and Intelligence Services Legislation Amendment Bill
2010 No. , 2010
(4) The chief officer of an agency may appoint in writing an officer of
1
the agency to be an authorising officer for the purposes of this
2
section.
3
22 After subsection 67(1)
4
Insert:
5
(1A) Subsection (1) does not apply to information:
6
(a) obtained by an officer or staff member of an agency by
7
intercepting a communication when exercising authority
8
under a warrant issued to another agency; or
9
(b) communicated to an officer or staff member of an agency in
10
accordance with section 66, where the information was
11
obtained by intercepting a communication under a warrant
12
issued to another agency; or
13
(c) that is interception warrant information in relation to a
14
warrant issued to another agency;
15
unless the information has been communicated to an officer of the
16
agency under section 68.
17
(1B) However, an officer or staff member of an agency may
18
communicate to another person, make use of, or make a record of
19
information referred to paragraph (1A)(a), (b) or (c), that has not
20
been communicated to an officer of the agency under section 68,
21
for a purpose or purposes connected with the investigation to
22
which the warrant, under which the information was obtained,
23
relates, and for no other purpose.
24
23 After subsection 81(2)
25
Insert:
26
(2A)
If:
27
(a) the Organisation is exercising the authority conferred by a
28
Part 2-5 warrant issued to a Commonwealth agency; and
29
(b) the Commonwealth agency does not have the particulars
30
referred to in subparagraph (1)(c)(ii), (iii) or (iv), or
31
paragraph (1)(d);
32
the Director-General of Security must:
33
(c) cause those particulars to be recorded in accordance with
34
subsections (1) and (2); and
35
Exercise of warrant powers Schedule 1
Telecommunications Interception and Intelligence Services Legislation Amendment Bill 2010
No. , 2010 9
(d) give the records produced to the chief officer of the
1
Commonwealth agency to which the Part 2-5 warrant was
2
issued.
3
24 Subsection 81(3)
4
After "caused to be made", insert ", or is given,".
5
25 After section 81
6
Insert:
7
81AA Organisation to record particulars in relation to eligible
8
authorities of a State
9
If:
10
(a) the Organisation is exercising the authority conferred by a
11
Part 2-5 warrant issued to an eligible authority of a State; and
12
(b) the eligible authority does not have the particulars referred to
13
in subparagraph 81(1)(c)(ii), (iii) or (iv), or paragraph
14
81(1)(d);
15
the Director-General of Security must:
16
(c) cause those particulars to be recorded in accordance with
17
subsections 81(1) and (2); and
18
(d) give the records produced to the chief officer of the eligible
19
authority to which the Part 2-5 warrant was issued.
20
26 After paragraph 103(ac)
21
Insert:
22
(aca) the number (if any) of interceptions carried out by the
23
Organisation on behalf of:
24
(i) each Commonwealth agency; and
25
(ii) each eligible authority of a State, where the eligible
26
authority was an agency at any time during the year to
27
which the report relates; and
28
27 Subsections 127(1) and (2)
29
Repeal the subsections, substitute:
30
Schedule 1 Exercise of warrant powers
10 Telecommunications Interception and Intelligence Services Legislation Amendment Bill
2010 No. , 2010
(1) The authority conferred by a stored communications warrant may
1
only be exercised by a person in relation to whom an approval
2
under subsection (2) is in force in relation to the warrant.
3
(2) The chief officer of an enforcement agency, or an officer of an
4
enforcement agency in relation to whom an appointment under
5
subsection (3) is in force, may approve any of the following
6
persons to exercise the authority conferred by warrants (or classes
7
of warrants) issued to the agency:
8
(a) officers (or classes of officers) of the agency or another
9
enforcement agency;
10
(b) staff members (or classes of staff members) of the agency or
11
another enforcement agency.
12
28 Saving provision in relation to items 5 and 27
13
The amendments made by items 5 and 27 of this Schedule do not affect
14
the validity of any approval given under subsection 55(3) or 127(2) of
15
the Telecommunications (Interception and Access) Act 1979 before this
16
Schedule commences.
17
29 Saving provision in relation to item 9
18
(1)
This item applies to a delegation if:
19
(a) the delegation was made under subsection 57(4) of the
20
Telecommunications (Interception and Access) Act 1979 in
21
relation to the power of the chief officer of an agency to
22
revoke a warrant under subsection 57(2) of that Act; and
23
(b) the delegation was in force immediately before this Schedule
24
commences.
25
(2)
The delegation has effect, after this Schedule commences, as if it had
26
been made under subsection 57(4) of that Act in relation to the power of
27
the chief officer of the agency to revoke a warrant under paragraph
28
57(1)(a) of that Act, as amended by this Act.
29
Requirement to inform of proposed changes Schedule 2
Telecommunications Interception and Intelligence Services Legislation Amendment Bill 2010
No. , 2010 11
Schedule 2--Requirement to inform of
1
proposed changes
2
3
Telecommunications (Interception and Access) Act 1979
4
1 Subsection 5(1)
5
Insert:
6
carriage service provider has the meaning given by the
7
Telecommunications Act 1997.
8
2 Subsection 5(1) (definition of carrier)
9
Repeal the definition, substitute:
10
carrier means:
11
(a) except in Parts 5-4 and 5-4A:
12
(i) a carrier (within the meaning of the
13
Telecommunications Act 1997); or
14
(ii) a carriage service provider; and
15
(b) in Parts 5-4 and 5-4A--a carrier (within the meaning of the
16
Telecommunications Act 1997).
17
3 Subsection 5(1)
18
Insert:
19
nominated carriage service provider means a carriage service
20
provider covered by a declaration in force under subsection 197(4).
21
4 Subsection 5(1)
22
Insert:
23
notifiable equipment, in relation to a carrier or nominated carriage
24
service provider, means equipment that:
25
(a) provides all or part of the carrier or provider's
26
telecommunication services; or
27
(b) manages all or part of the provision of the carrier or
28
provider's telecommunication services; or
29
Schedule 2 Requirement to inform of proposed changes
12 Telecommunications Interception and Intelligence Services Legislation Amendment Bill
2010 No. , 2010
(c) manages some or all of the information to which section 276
1
of the Telecommunications Act 1997 applies in relation to the
2
carrier or provider.
3
5 Chapter 5 (heading)
4
Repeal the heading, substitute:
5
Chapter 5--Co-operation with agencies
6
6 Section 194
7
Repeal the section.
8
7 Subsection 197(4)
9
After "Part", insert "and Part 5-4A".
10
8 After Part 5-4
11
Insert:
12
Part 5-4A--Requirement arising from proposed
13
changes
14
15
202A Purpose of Part
16
The purpose of this Part is:
17
(a) to require carriers and nominated carriage service providers
18
to give notice of the particulars of any change that is
19
proposed in relation to a telecommunications service or a
20
telecommunications system, whose implementation may
21
affect the capacity of the carrier or provider to comply with
22
its obligations under:
23
(i) this Act; or
24
(ii) section 313 of the Telecommunications Act 1997; and
25
(b) to allow the Communications Access Co-ordinator to notify
26
agencies of such proposed changes.
27
Requirement to inform of proposed changes Schedule 2
Telecommunications Interception and Intelligence Services Legislation Amendment Bill 2010
No. , 2010 13
202B Carrier or provider to notify of proposed change
1
(1) This section applies if, at any time, a carrier or a nominated
2
carriage service provider becomes aware that the implementation
3
by the carrier or provider of a change that is proposed to a
4
telecommunications service or a telecommunications system is
5
likely to have a material adverse effect on the capacity of the
6
carrier or provider to comply with its obligations under:
7
(a) this Act; or
8
(b) section 313 of the Telecommunications Act 1997.
9
(2) A change to a telecommunications service or a telecommunications
10
system includes (but is not limited to) the following:
11
(a) the carrier or carriage service provider providing one or more
12
new telecommunication services;
13
(b) the carrier or carriage service provider changing the location
14
of notifiable equipment (including moving equipment outside
15
Australia);
16
(c) the carrier or carriage service provider procuring notifiable
17
equipment (including procuring equipment that is located
18
outside Australia);
19
(d) the carrier or carriage service provider entering into
20
outsourcing arrangements:
21
(i) to have all or part of the telecommunication services
22
provided for the carrier or provider; or
23
(ii) to have all or part of the provision of telecommunication
24
services managed for the carrier or provider; or
25
(iii) to have all or some information to which section 276 of
26
the Telecommunications Act 1997 applies in relation to
27
the carrier or provider, managed for the carrier or
28
provider;
29
(e) the carrier or carriage service provider entering into
30
arrangements to have all or some information to which
31
section 276 of the Telecommunications Act 1997 applies in
32
relation to the carrier or provider accessed by persons outside
33
Australia.
34
(3) The carrier or provider must notify the Communications Access
35
Co-ordinator, in writing, of its intention to implement the proposed
36
change.
37
Schedule 2 Requirement to inform of proposed changes
14 Telecommunications Interception and Intelligence Services Legislation Amendment Bill
2010 No. , 2010
(4) A notification provided under subsection (3) must include a
1
description of the proposed change.
2
(5) After notifying the Communications Access Co-ordinator of a
3
proposed change, the carrier or provider may implement the
4
change if the carrier or provider has not been notified in writing by
5
the Co-ordinator within 30 days after the day the carrier or
6
provider notifies the Co-ordinator.
7
(6)
If:
8
(a) the Communications Access Co-ordinator notifies the carrier
9
or provider in writing within 30 days after the day the carrier
10
or provider notifies the Co-ordinator; and
11
(b) within 30 days after the Co-ordinator so notifies the carrier or
12
provider, the Co-ordinator makes a determination under
13
section 203 that applies to the carrier or provider;
14
the carrier or provider must not implement the proposed change
15
until the carrier or provider has complied with the determination.
16
(7) To avoid doubt, subsection (6) does not prevent the
17
Communications Access Co-ordinator from making a
18
determination under section 203, that applies to the carrier or
19
provider, more than 30 days after the Co-ordinator first notifies the
20
carrier or provider in writing as mentioned in paragraph (6)(a).
21
202C Communications Access Co-ordinator may notify agencies
22
(1) After the Communications Access Co-ordinator has been notified
23
by a carrier or nominated carriage service provider of an intention
24
to implement a proposed change, the Co-ordinator may notify
25
agencies that are likely to be interested of the proposed change.
26
(2) On receiving notification from a carrier or provider of an intention
27
to implement a proposed change, the Communications Access
28
Co-ordinator, and each agency that receives notification of the
29
proposed change, must treat the proposed change as confidential.
30
9 Application of this Schedule
31
The amendments made by this Schedule apply in relation to changes
32
that are proposed, after this Schedule commences, to
33
telecommunications services or telecommunications systems.
34
Disclosure of telecommunications data relating to missing persons Schedule 3
Telecommunications Interception and Intelligence Services Legislation Amendment Bill 2010
No. , 2010 15
Schedule 3--Disclosure of
1
telecommunications data relating to
2
missing persons
3
4
Telecommunications (Interception and Access) Act 1979
5
1 Subsection 5(1)
6
Insert:
7
missing person information, in relation to a missing person, has
8
the meaning given by section 182.
9
2 Subsection 5(1)
10
Insert:
11
non-missing person information has the meaning given by
12
section 182.
13
3 After section 178
14
Insert:
15
178A Authorisations for access to existing information or
16
documents--locating missing persons
17
(1) Sections 276, 277 and 278 of the Telecommunications Act 1997 do
18
not prevent a disclosure of information or a document if the
19
information or document is covered by an authorisation in force
20
under subsection (2).
21
(2) An authorised officer of the Australian Federal Police, or a Police
22
Force of a State, may authorise the disclosure of specified
23
information or specified documents that came into existence before
24
the time the person from whom the disclosure is sought receives
25
notification of the authorisation.
26
Note:
Section 184 deals with notification of authorisations.
27
(3) The authorised officer must not make the authorisation unless he or
28
she is satisfied that the disclosure is reasonably necessary for the
29
Schedule 3 Disclosure of telecommunications data relating to missing persons
16 Telecommunications Interception and Intelligence Services Legislation Amendment Bill
2010 No. , 2010
purposes of finding a person who the Australian Federal Police, or
1
a Police Force of a State, has been notified is missing.
2
4 Subsection 182(2)
3
Omit "information or a document", substitute "non-missing person
4
information".
5
5 After subsection 182(2)
6
Insert:
7
(2A) Paragraph (1)(b) does not apply to a disclosure of missing person
8
information in relation to a missing person if:
9
(a) the disclosure is reasonably necessary for the purposes of
10
finding the missing person; or
11
(b) the information is disclosed to the person who notified the
12
Australian Federal Police, or a Police Force of a State, of the
13
missing person and:
14
(i) the missing person consented to the disclosure; or
15
(ii) the missing person is unable to consent, and the
16
disclosure is reasonably necessary to prevent a threat to
17
the missing person's health, life or safety; or
18
(iii) the missing person is dead.
19
Note:
A defendant bears an evidential burden in relation to the matter in
20
subsection (2A) (see subsection 13.3(3) of the Criminal Code).
21
6 Subsection 182(3)
22
Omit "information or a document", substitute "non-missing person
23
information".
24
7 At the end of section 182
25
Add:
26
(4) Paragraph (1)(b) does not apply to a use of missing person
27
information in relation to a missing person if the use is reasonably
28
necessary for the purposes of finding the missing person.
29
Note:
A defendant bears an evidential burden in relation to the matter in
30
subsection (4) (see subsection 13.3(3) of the Criminal Code).
31
(5) In this Act:
32
Disclosure of telecommunications data relating to missing persons Schedule 3
Telecommunications Interception and Intelligence Services Legislation Amendment Bill 2010
No. , 2010 17
missing person information, in relation to a missing person, means
1
information or a document that is disclosed under section 178A
2
(locating missing persons) in relation to the person who the
3
Australian Federal Police, or a Police Force of a State, has been
4
notified is missing.
5
non-missing person information means information or a
6
document that is disclosed as permitted by Division 4, but not
7
under section 178A (locating missing persons).
8
8 After paragraph 186(1)(a)
9
Insert:
10
(aa) the number of authorisations made under section 178A by an
11
authorised officer of the enforcement agency during that
12
year; and
13
9 Application of this Schedule
14
The amendments made by this Schedule apply in relation to:
15
(a) information or documents that come into existence before or
16
after this Schedule commences; and
17
(b) persons who the Australian Federal Police, or a Police Force
18
of a State, are notified are missing before or after this
19
Schedule commences.
20
21
Schedule 4 Stored communications warrants in relation to victims of serious
contraventions
18 Telecommunications Interception and Intelligence Services Legislation Amendment Bill
2010 No. , 2010
Schedule 4--Stored communications warrants
1
in relation to victims of serious
2
contraventions
3
4
Telecommunications (Interception and Access) Act 1979
5
1 Paragraph 116(1)(d)
6
After "involved", insert "(including as a victim of the serious
7
contravention)".
8
2 After paragraph 116(1)(d)
9
Insert:
10
(da) if the stored communications warrant is applied for in
11
relation to a person who is the victim of the serious
12
contravention--the person is unable to consent, or it is
13
impracticable for the person to consent, to those stored
14
communications being accessed; and
15
3 Paragraph 116(1)(e)
16
Before "having", insert "in any case--".
17
4 Application of this Schedule
18
The amendments made by this Schedule apply to applications for stored
19
communications warrants made after this Schedule commences,
20
whether:
21
(a) the conduct constituting the serious contraventions concerned
22
is engaged in before or after this Schedule commences; and
23
(b) the information to be accessed by the warrants is first held on
24
equipment before or after this Schedule commences.
25
26
Notifying Managing Directors of warrants Schedule 5
Telecommunications Interception and Intelligence Services Legislation Amendment Bill 2010
No. , 2010 19
Schedule 5--Notifying Managing Directors of
1
warrants
2
3
Telecommunications (Interception and Access) Act 1979
4
1 Subsection 5(1)
5
Insert:
6
authorised representative of a carrier means one of the following
7
persons:
8
(a) the Managing Director of the carrier;
9
(b) the secretary of the carrier;
10
(c) an employee of the carrier authorised in writing for the
11
purposes of this paragraph by the Managing Director or the
12
secretary of the carrier.
13
2 Paragraph 15(1A)(c)
14
Omit "the Managing Director", substitute "an authorised
15
representative".
16
3 Paragraph 15(1A)(d)
17
Omit "the Managing Director of that carrier", substitute "that authorised
18
representative".
19
4 Paragraph 15(1B)(a)
20
Omit "the Managing Director", substitute "an authorised
21
representative".
22
5 Paragraphs 15(1B)(c) and (d)
23
Omit "the Managing Director of that carrier", substitute "that authorised
24
representative".
25
6 Paragraph 15(4)(c)
26
Omit "the Managing Director", substitute "an authorised
27
representative".
28
7 Paragraph 15(4)(d)
29
Schedule 5 Notifying Managing Directors of warrants
20 Telecommunications Interception and Intelligence Services Legislation Amendment Bill
2010 No. , 2010
Omit "the Managing Director of that carrier", substitute "that authorised
1
representative".
2
8 Paragraph 15(7)(c)
3
Omit "the Managing Director", substitute "an authorised
4
representative".
5
9 Paragraph 15(7)(d)
6
Omit "the Managing Director of that carrier", substitute "that authorised
7
representative".
8
10 Paragraph 16(1)(a)
9
Omit "the Managing Director", substitute "an authorised
10
representative".
11
11 Subsection 16(1)
12
Omit "the Managing Director of the carrier", substitute "that authorised
13
representative".
14
12 Paragraph 16(1A)(a)
15
Omit "the Managing Director", substitute "an authorised
16
representative".
17
13 Subsection 16(1A)
18
Omit "the Managing Director of the carrier", substitute "that authorised
19
representative".
20
14 Paragraph 16(2)(a)
21
Omit "the Managing Director", substitute "an authorised
22
representative".
23
15 Paragraphs 16(2)(c) and (d)
24
Omit "the Managing Director", substitute "that authorised
25
representative".
26
16 Paragraph 47(a)
27
Omit "by or on behalf of the Managing Director", substitute "by an
28
authorised representative".
29
Notifying Managing Directors of warrants Schedule 5
Telecommunications Interception and Intelligence Services Legislation Amendment Bill 2010
No. , 2010 21
17 Paragraph 60(1)(c)
1
Omit "the Managing Director", substitute "an authorised
2
representative".
3
Note:
The heading to section 60 is altered by omitting "Managing Director" and substituting
4
"authorised representative".
5
18 Paragraph 60(1)(d)
6
Omit "the Managing Director of that carrier", substitute "that authorised
7
representative".
8
19 Paragraph 60(3)(a)
9
Omit "the Managing Director", substitute "an authorised
10
representative".
11
20 Paragraphs 60(3)(c) and (d)
12
Omit "the Managing Director of that carrier", substitute "that authorised
13
representative".
14
21 Paragraph 60(4)(a)
15
Omit "the Managing Director", substitute "an authorised
16
representative".
17
22 Subsection 60(4)
18
Omit "the Managing Director of the carrier", substitute "that authorised
19
representative".
20
23 Paragraph 60(4A)(a)
21
Omit "the Managing Director", substitute "an authorised
22
representative".
23
24 Subsection 60(4A)
24
Omit "the Managing Director of the carrier", substitute "that authorised
25
representative".
26
25 Paragraph 60(5)(a)
27
Omit "the Managing Director", substitute "an authorised
28
representative".
29
26 Paragraphs 60(5)(c) and (d)
30
Schedule 5 Notifying Managing Directors of warrants
22 Telecommunications Interception and Intelligence Services Legislation Amendment Bill
2010 No. , 2010
Omit "the Managing Director", substitute "that authorised
1
representative".
2
27 Paragraph 121(a)
3
Omit "the Managing Director", substitute "an authorised
4
representative".
5
28 Paragraph 121(b)
6
Omit "the Managing Director of that carrier", substitute "that authorised
7
representative".
8
29 Subsection 123(2)
9
Omit "the Managing Director" (first occurring), substitute "an
10
authorised representative".
11
30 Paragraph 123(2)(a)
12
Omit "the Managing Director of the carrier", substitute "that authorised
13
representative".
14
31 Paragraph 123(2)(b)
15
Omit "the Managing Director", substitute "that authorised
16
representative".
17
32 Paragraph 124(1)(a)
18
Omit "the Managing Director", substitute "an authorised
19
representative".
20
33 Subsection 124(1)
21
Omit "the Managing Director of the carrier", substitute "that authorised
22
representative".
23
34 Paragraph 124(2)(a)
24
Omit "the Managing Director", substitute "an authorised
25
representative".
26
35 Paragraphs 124(2)(c) and (d)
27
Omit "the Managing Director", substitute "that authorised
28
representative".
29
Notifying Managing Directors of warrants Schedule 5
Telecommunications Interception and Intelligence Services Legislation Amendment Bill 2010
No. , 2010 23
36 Section 126
1
Omit "by or on behalf of the Managing Director", substitute "by an
2
authorised representative".
3
37 Application of Schedule
4
The amendments made by this Schedule apply in relation to:
5
(a) warrants issued before this Schedule commences, if the
6
Managing Director of the relevant carrier is not informed of
7
the issue or revocation of the warrant (as the case requires)
8
under section 15, 60, 121 or 123 of the Telecommunications
9
(Interception and Access) Act 1979 before this Schedule
10
commences; and
11
(b) warrants issued after this Schedule commences.
12
13
Schedule 6 Co-operation, assistance and communication between intelligence agencies
24 Telecommunications Interception and Intelligence Services Legislation Amendment Bill
2010 No. , 2010
Schedule 6--Co-operation, assistance and
1
communication between intelligence
2
agencies
3
4
Australian Security Intelligence Organisation Act 1979
5
1 Section 4
6
Insert:
7
ASIS has the meaning given by the Intelligence Services Act 2001.
8
2 Section 4 (after paragraph (a) of the definition of authority
9
of the Commonwealth)
10
Insert:
11
(aa) a Department within the meaning of the Parliamentary
12
Service Act 1999;
13
3 Section 4 (paragraph (f) of the definition of authority of the
14
Commonwealth)
15
Repeal the paragraph, substitute:
16
(f) a body corporate in which the Commonwealth or a body
17
referred to in paragraph (c) has a controlling interest.
18
4 Section 4
19
Insert:
20
authority of a State:
21
(a) in Part IV--has the meaning given by subsection 35(1); and
22
(b)
otherwise--includes:
23
(i) a Department of State of a State, or a Department of the
24
Public Service of a State; and
25
(ii) a body, whether incorporated or not, established for
26
public purposes by or under a law of a State; and
27
(iii) a body corporate in which a State or a body referred to
28
in subparagraph (ii) has a controlling interest.
29
5 Section 4
30
Co-operation, assistance and communication between intelligence agencies Schedule 6
Telecommunications Interception and Intelligence Services Legislation Amendment Bill 2010
No. , 2010 25
Insert:
1
DIGO has the meaning given by the Intelligence Services Act
2
2001.
3
6 Section 4
4
Insert:
5
DSD has the meaning given by the Intelligence Services Act 2001.
6
7 Section 4
7
Insert:
8
law enforcement agency means an authority of the
9
Commonwealth, or an authority of a State, that has functions
10
relating to law enforcement.
11
8 Section 4
12
Insert:
13
serious crime means conduct that, if engaged in within, or in
14
connection with, Australia, would constitute an offence against the
15
law of the Commonwealth, a State or a Territory punishable by
16
imprisonment for a period exceeding 12 months.
17
9 Section 4
18
Insert:
19
staff member of a body (however described) includes:
20
(a) the head (however described) of the body, or another person
21
who holds an office or appointment in relation to the body;
22
and
23
(b) a person who is otherwise a member of the staff of the body
24
(whether an employee of the body, a consultant or contractor
25
to the body, or a person who is made available by an
26
authority of the Commonwealth, an authority of a State, or
27
other person, to perform services for the body).
28
10 Paragraph 17(1)(b)
29
Omit "and not otherwise".
30
Schedule 6 Co-operation, assistance and communication between intelligence agencies
26 Telecommunications Interception and Intelligence Services Legislation Amendment Bill
2010 No. , 2010
11 At the end of subsection 17(1)
1
Add:
2
; and (f) to co-operate with and assist bodies referred to in
3
section 19A in accordance with that section.
4
12 Subsection 18(3)
5
Repeal the subsection, substitute:
6
Communicating information to appropriate authorities of the
7
Commonwealth or a State
8
(3) A person referred to in subsection (1) may communicate
9
information to a person referred to in subsection (4) if:
10
(a) the information has come into the possession of the
11
Organisation in the course of performing the Organisation's
12
functions under section 17; and
13
(b)
either:
14
(i) the information relates, or appears to relate, to the
15
commission, or intended commission, of a serious
16
crime; or
17
(ii) the Director-General, or a person authorised for the
18
purpose by the Director-General, is satisfied that the
19
national interest requires the communication; and
20
(c) the information relates, or appears to relate, to the
21
performance of the functions, responsibilities or duties of the
22
person referred to in subsection (4).
23
Note:
There are additional restrictions, in the Telecommunications
24
(Interception and Access) Act 1979, on communicating
25
telecommunications information.
26
(4) The persons to whom information may be communicated under
27
subsection (3) are the following:
28
(a)
a
Minister;
29
(b) a staff member of an authority of the Commonwealth;
30
(c) a staff member of an authority of a State.
31
Communicating information to ASIS, DSD and DIGO
32
(4A) A person referred to in subsection (1) may communicate
33
information to a staff member of ASIS, DSD or DIGO if:
34
Co-operation, assistance and communication between intelligence agencies Schedule 6
Telecommunications Interception and Intelligence Services Legislation Amendment Bill 2010
No. , 2010 27
(a) the information has come into the possession of the
1
Organisation in the course of performing the Organisation's
2
functions under section 17; and
3
(b) the information relates, or appears to relate, to the
4
performance of ASIS, DSD or DIGO's functions (as the case
5
requires).
6
Communicating information in relation to emergency declarations
7
(4B) A person referred to in subsection (1) may communicate
8
information, in accordance with Part VIA of the Privacy Act 1988,
9
if:
10
(a) the information has come into the possession of the
11
Organisation in the course of performing its functions under
12
section 17; and
13
(b) an emergency declaration (within the meaning of section 80G
14
of that Act) is in force.
15
Note 1: The following heading to subsection 18(1) is inserted "Who may communicate
16
intelligence".
17
Note 2: The following heading to subsection 18(2) is inserted "Offence for unauthorised
18
communication of information".
19
Note 3: The following heading to subsection 18(5) is inserted "Attorney-General's consent
20
required for prosecution of offence".
21
13 Subsection 18(6)
22
Repeal the subsection.
23
14 Subsection 19(1)
24
Omit "its" (first occurring), substitute "the Organisation's".
25
Note:
The heading to section 19 is altered by adding at the end "in connection with
26
performance of Organisation's functions".
27
15 Subsection 19(2)
28
Omit "Notwithstanding paragraph 17(1)(b), the Director-General or an
29
officer authorised by the Director-General", substitute "A person
30
referred to in subsection 18(1)".
31
16 At the end of subsection 19(2)
32
Add:
33
Schedule 6 Co-operation, assistance and communication between intelligence agencies
28 Telecommunications Interception and Intelligence Services Legislation Amendment Bill
2010 No. , 2010
Note:
There are additional restrictions, in the Telecommunications
1
(Interception and Access) Act 1979, on communicating
2
telecommunications information.
3
17 After section 19
4
Insert:
5
19A Co-operation with intelligence and law enforcement agencies
6
etc. in connection with performance of their functions
7
(1) The Organisation may co-operate with and assist the following
8
bodies in the performance of their functions:
9
(a)
ASIS;
10
(b)
DSD;
11
(c)
DIGO;
12
(d) a law enforcement agency;
13
(e) an authority of the Commonwealth, or an authority of a State,
14
that is prescribed by the regulations for the purposes of this
15
paragraph.
16
(2) However, the Organisation may only do so:
17
(a) subject to any arrangements made or directions given by the
18
Minister; and
19
(b) on request by the head (however described) of the body
20
referred to in subsection (1).
21
(3) Without limiting subsection (1), in co-operating with and assisting
22
a body in accordance with this section, the Organisation may make
23
the services of officers and employees, and other resources, of the
24
Organisation available to the body.
25
Communicating information
26
(4) A person referred to in subsection 18(1) may communicate
27
information to a staff member of a body referred to in
28
paragraph (1)(d) or (e) if:
29
(a) the information has come into the possession of the
30
Organisation in the course of performing the Organisation's
31
functions under section 17; and
32
(b) the information is communicated for the purposes of
33
co-operating with or assisting the body under this section.
34
Co-operation, assistance and communication between intelligence agencies Schedule 6
Telecommunications Interception and Intelligence Services Legislation Amendment Bill 2010
No. , 2010 29
Note 1:
For communication of information to ASIS, DSD and DIGO, see
1
subsection 18(4A).
2
Note 2:
There are additional restrictions, in the Telecommunications
3
(Interception and Access) Act 1979, on communicating
4
telecommunications information.
5
Intelligence Services Act 2001
6
18 Section 3 (paragraph (a) of the definition of incidentally
7
obtained intelligence)
8
After "subsection 6(1)", insert "(other than intelligence obtained solely
9
in the course of obtaining intelligence under paragraph 6(1)(da))".
10
19 Section 3 (at the end of paragraph (a) of the definition of
11
intelligence information)
12
Add "(other than information obtained solely under paragraph
13
6(1)(da))".
14
20 After paragraph 6(1)(d)
15
Insert:
16
(da) to co-operate with and assist bodies referred to in
17
section 13A in accordance with that section; and
18
21 At the end of section 6B
19
Add:
20
; and (f) to co-operate with and assist bodies referred to in
21
section 13A in accordance with that section.
22
22 At the end of section 7
23
Add:
24
; and (f) to co-operate with and assist bodies referred to in
25
section 13A in accordance with that section.
26
23 Paragraph 11(2)(d)
27
Before "providing", insert "performing the function set out in paragraph
28
6(1)(da) or".
29
24 Paragraph 11(2)(e)
30
Omit "paragraph 6B(e)", substitute "paragraphs 6B(e) and (f)".
31
Schedule 6 Co-operation, assistance and communication between intelligence agencies
30 Telecommunications Interception and Intelligence Services Legislation Amendment Bill
2010 No. , 2010
25 Paragraph 11(2)(f)
1
Omit "paragraph 7(e)", substitute "paragraphs 7(e) and (f)".
2
26 Subsection 11(3)
3
Omit "6B(b), (c), (d) and (e) and 7(c), (d) and (e)", substitute "6(1)(da),
4
6B(b), (c), (d), (e) and (f), and 7(c), (d), (e) and (f)".
5
27 After section 13
6
Insert:
7
13A Co-operation with intelligence agencies etc. in connection with
8
performance of their functions
9
(1) An agency may co-operate with and assist the following bodies in
10
the performance of their functions:
11
(a)
another
agency;
12
(b)
ASIO;
13
(c) a Commonwealth authority, or a State authority, that is
14
prescribed by the regulations for the purposes of this
15
paragraph.
16
(2) However, the agency may only do so:
17
(a) subject to any arrangements made or directions given by the
18
responsible Minister; and
19
(b) on request by the head (however described) of the body
20
referred to in subsection (1).
21
Note:
The Inspector-General of Intelligence and Security has oversight
22
powers in relation to Ministerial directions and authorisations given
23
under this Act. See in particular section 32B of the Inspector-General
24
of Intelligence and Security Act 1986 (which requires the Minister to
25
give a copy of a direction under this section to the Inspector-General
26
of Intelligence and Security as soon as practicable after the direction is
27
given).
28
(3) Without limiting subsection (1), in co-operating with and assisting
29
a body in accordance with this section, an agency may make the
30
services of staff members, and other resources, of the agency
31
available to the body.
32
Note:
The heading to section 13 is altered by adding at the end "in connection with
33
performance of agency's own functions".
34
Co-operation, assistance and communication between intelligence agencies Schedule 6
Telecommunications Interception and Intelligence Services Legislation Amendment Bill 2010
No. , 2010 31
Telecommunications (Interception and Access) Act 1979
1
28 Subsections 65(1) and 137(1)
2
Omit "paragraph 18(3)(a) or (b)", substitute "subsection 18(3) or (4A),
3
or subsection 19A(4)".
4
29 Application of amendments relating to communication of
5
information
6
Section 18 and subsection 19(2) of the Australian Security Intelligence
7
Organisation Act 1979, as amended by this Schedule, and subsection
8
19A(4) of that Act, as inserted by this Schedule, apply in relation to any
9
information, whether the information comes into the possession of the
10
Organisation before or after this Schedule commences.
11
12
Schedule 7 Amendments to section 5 of the Telecommunications (Interception and
Access) Act 1979
32 Telecommunications Interception and Intelligence Services Legislation Amendment Bill
2010 No. , 2010
Schedule 7--Amendments to section 5 of the
1
Telecommunications (Interception and
2
Access) Act 1979
3
4
Telecommunications (Interception and Access) Act 1979
5
1 Subsection 5(1)
6
Insert:
7
Director-General of Security means the person holding, or
8
performing the duties of, the office of Director-General of Security
9
under the Australian Security Intelligence Organisation Act 1979.
10
2 Subsection 5(1) (paragraph (b) of the definition of
11
enforcement agency)
12
Repeal the paragraph, substitute:
13
(b) a Police Force of a State; or
14
3 Subsection 5(1)
15
Insert:
16
member of the staff of the Police Integrity Commission means a
17
person who is, for the purposes of the Police Integrity Commission
18
Act, a member of the staff of the Commission.
19
4 Subsection 5(1) (definition of member of the staff of the
20
Policy Integrity Commission)
21
Repeal the definition.
22
5 Subsection 5(1) (subparagraph (h)(ii) of the definition of
23
officer)
24
Omit "Policy", substitute "Police".
25
6 Subsection 5(1)
26
Insert:
27
Organisation means the Australian Security Intelligence
28
Organisation.
29
Amendments to section 5 of the Telecommunications (Interception and Access) Act
1979 Schedule 7
Telecommunications Interception and Intelligence Services Legislation Amendment Bill 2010
No. , 2010 33
7 Subsection 5(1) (definition of the Director-General of
1
Security)
2
Repeal the definition.
3
8 Subsection 5(1) (definition of the Organisation)
4
Repeal the definition.
5