Commonwealth Consolidated Acts

TELECOMMUNICATIONS (INTERCEPTION) AMENDMENT ACT 2006 - SCHEDULE 5

Telecommunications (Interception) Act 1979

1  Subsection 5(1) (subparagraph (a)(v) of the definition of permitted purpose )

Omit "the Chief Executive Officer of the ACC by subsections 80(2), 81(2) and 81(3)", substitute "the chief officer of a Commonwealth agency by sections 80 and 81".

2  Division 1 of Part 2‑5

Repeal the Division.

3  Paragraph 35(1)(a)

Omit "subsections 80(2) and 81(2) and (3) impose on the Chief Executive Officer of the ACC", substitute "sections 80 and 81 impose on the chief officer of a Commonwealth agency".

4  Section 47

Repeal the section, substitute:

47   Limit on authority conferred by warrant

                   A warrant issued under section 46 or 46A does not authorise the interception of communications passing over a telecommunications system that a carrier operates unless:

                     (a)  notification of the issue of the warrant has been received by or on behalf of the Managing Director of the carrier under subsection 60(1); and

                     (b)  the interception takes place as a result of action taken by an employee of the carrier.

5  Subsection 52(2)

Omit "other than the Australian Federal Police".

6  Paragraphs 52(2)(a) and (b)

Omit "Commissioner of Police", substitute "Secretary of the Department".

7  Subsection 53(1)

Omit "other than the Australian Federal Police".

Note:       The heading to section 53 is replaced by the heading " Notification of issue of warrants ".

8  Paragraphs 53(1)(a), (b) and (d)

Omit "Commissioner of Police", substitute "Secretary of the Department".

9  Section 54

Repeal the section, substitute:

54   Entry into force of warrants

                   A warrant comes into force when it is issued.

10  Section 56

Repeal the section.

11  Subsections 57(1) and (2)

Repeal the subsections, substitute:

             (1)  The chief officer of an agency must, on being satisfied that the grounds on which a warrant was issued to the agency have ceased to exist:

                     (a)  cause the Secretary of the Department to be informed forthwith that the chief officer proposes to revoke the warrant; and

                     (b)  cause the chief officer of any other agency that is exercising authority under the warrant to be informed forthwith of the proposed revocation of the warrant; and

                     (c)  by writing signed by him or her, revoke the warrant.

             (2)  The chief officer of an agency may at any time, by writing signed by him or her, revoke a warrant issued to the agency after:

                     (a)  causing the Secretary of the Department to be informed of the proposed revocation; and

                     (b)  causing the chief officer of any other agency that is exercising authority under the warrant to be informed forthwith that the chief officer proposes to revoke the warrant.

Note:       The heading to section 57 is altered by omitting " of other agency ".

12  Paragraphs 57(3)(a) and (b)

Omit "Commissioner of Police", substitute "Secretary of the Department".

13  At the end of section 57

Add:

             (5)  This section does not apply in relation to a warrant that has ceased to be in force.

14  Subsection 58(1)

Repeal the subsection, substitute:

             (1)  The chief officer of an agency must, on the revocation or proposed revocation of a warrant issued to the agency, forthwith take such steps as are necessary to ensure that interceptions of communications under the warrant are discontinued.

15  Subsection 58(2)

Omit "subsection 56(2) or".

16  Section 59

Omit "Commissioner of Police", substitute "Secretary of the Department".

17  Paragraph 60(2)(a)

Omit "Commissioner of Police", substitute "Secretary of the Department".

18  Subsection 61(3)

Repeal the subsection.

19  Saving provision

A certificate issued under subsection 61(3) of the Telecommunications (Interception) Act 1979 that had effect immediately before the repeal of that subsection by this Act has effect after that repeal as if that subsection had not been repealed.

20  Subsection 61(5)

Omit "(3) or".

21  Subsection 79(2)

Omit "Commissioner of Police", substitute "Secretary of the Department".

22  Part 2‑7 (heading)

Repeal the heading, substitute:

Part 2‑7 -- Keeping and inspection of interception records

23  Sections 80 and 81

Repeal the sections, substitute:

80   Commonwealth agencies to keep documents connected with issue of warrants

                   The chief officer of a Commonwealth agency must cause to be kept in the agency's records:

                     (a)  each warrant issued to the agency; and

                     (b)  a copy of each notification under paragraph 53(1)(b) of the issue of such a warrant, being a notification given to the Secretary of the Department; and

                     (c)  each instrument revoking such a warrant; and

                     (d)  a copy of each certificate issued under subsection 61(4) by a certifying officer of the agency; and

                     (e)  each authorisation by the chief officer under subsection 66(2).

81   Other records to be kept by Commonwealth agencies in connection with interceptions

             (1)  The chief officer of a Commonwealth agency must cause:

                     (a)  particulars of each telephone application for a Part 2‑5 warrant made by the agency; and

                     (b)  in relation to each application by the agency for a Part 2‑5 warrant, a statement as to whether:

                              (i)  the application was withdrawn or refused; or

                             (ii)  a warrant was issued on the application; and

                     (c)  in relation to each Part 2‑5 warrant whose authority is exercised by the agency, particulars of:

                              (i)  the warrant; and

                             (ii)  the day on which, and the time at which, each interception under the warrant began; and

                            (iii)  the duration of each such interception; and

                            (iv)  the name of the person who carried out each such interception; and

                             (v)  in relation to a named person warrant--each service to or from which communications have been intercepted under the warrant; and

                     (d)  in relation to each restricted record that has at any time been in the agency's possession, particulars of:

                              (i)  if the restricted record is a record obtained by an interception under a warrant issued to the agency--that warrant; and

                             (ii)  each occasion when the restricted record came (whether by its making or otherwise) to be in the agency's possession; and

                            (iii)  each occasion (if any) when the restricted record ceased (whether by its destruction or otherwise) to be in the agency's possession; and

                            (iv)  each other agency or other body (if any) from or to which, or other person (if any) from or to whom, the agency received or supplied the restricted record; and

                     (e)  particulars of each use made by the agency of lawfully intercepted information; and

                      (f)  particulars of each communication of lawfully intercepted information by an officer of the agency to a person or body other than such an officer; and

                     (g)  particulars of each occasion when, to the knowledge of an officer of the agency, lawfully intercepted information was given in evidence in a relevant proceeding in relation to the agency;

to be recorded in writing or by means of a computer as soon as practicable after the happening of the events to which the particulars relate or the statement relates, as the case may be.

             (2)  If a Part 2‑5 warrant is a named person warrant, the particulars referred to in subparagraph (1)(c)(ii) must indicate the service in respect of which each interception occurred.

             (3)  The chief officer of a Commonwealth agency must cause to be kept in the agency's records each record that the chief officer has caused to be made under this section.

24  Subsections 81A(1) and (2)

Omit "Commissioner of Police", substitute "Secretary of the Department".

25  Saving provision

The General Register of Warrants kept by the Commissioner of Police before the commencement of this item is taken, after that commencement, to be the General Register of Warrants kept by the Secretary of the Department.

26  Subsection 81B(1)

Repeal the subsection, substitute:

             (1)  Within 3 months after the commencement of Schedule 5 to the Telecommunications (Interception) Amendment Act 2006 , the Secretary of the Department must deliver the General Register to the Minister for inspection.

27  Subsection 81B(2)

Omit "Commissioner of Police", substitute "Secretary of the Department".

28  Subsections 81C(1) and (2)

Omit "Commissioner of Police", substitute "Secretary of the Department".

29  Saving provision

The Special Register of Warrants kept by the Commissioner of Police before the commencement of this item is taken, after that commencement, to be the Special Register of Warrants kept by the Secretary of the Department.

30  Subsection 81D(1)

Repeal the subsection, substitute:

Original submission

             (1)  Within 3 months after the commencement of Schedule 5 to the Telecommunications (Interception) Amendment Act 2006 , the Secretary of the Department must deliver the Special Register to the Minister for inspection by the Minister.

31  Subsections 81D(2) and (3)

Omit "Commissioner of Police", substitute "Secretary of the Department".

32  Subsection 81E(2)

Omit "Commissioner of Police" (first occurring), substitute "Secretary of the Department".

Note:       The heading to subsection 81E(2) is altered by omitting " Commissioner " and substituting " Secretary ".

33  Subsection 81E(2)

Omit "Commissioner of Police" (second and third occurring), substitute "Secretary".

34  Saving provision

A notice given under section 81E of the Telecommunications (Interception) Act 1979 that had effect immediately before the commencement of this Schedule has effect after that commencement as if it were a notice by the Secretary requiring the information concerned to be given to the Secretary.

35  Section 82

Repeal the section.

36  At the end of paragraph 86(1)(a)

Add "and".

37  After paragraph 86(1)(b)

Insert:

             and (ba)  is entitled to have full and free access at all reasonable times to the General Register and the Special Register; and

38  Paragraph 86(1)(c)

After "agency", insert "or the General Register or Special Register".

39  At the end of section 86

Add:

             (3)  The Ombudsman's powers include doing anything incidental or conducive to the performance of any of the Ombudsman's functions under this Part.