TELECOMMUNICATIONS (INTERCEPTION AND ACCESS) ACT 1979 - SECT 11C Foreign communications warrant for collection of foreign intelligence

TELECOMMUNICATIONS (INTERCEPTION AND ACCESS) ACT 1979 - SECT 11C

Issue of warrant

  (1)   Where:

  (a)   the Director - General of Security gives a notice in writing to the Attorney - General requesting the Attorney - General to issue a warrant under this section authorising persons approved under section   12 in respect of the warrant to intercept communications for the purpose of obtaining foreign intelligence relating to a matter specified in the notice from foreign communications intercepted under the warrant; and

  (b)   the Attorney - General is satisfied, on the basis of advice received from the Minister for Defence or the Minister for Foreign Affairs, that:

  (i)   the collection of foreign intelligence relating to that matter is in the interests of Australia's national security, Australia's foreign relations or Australia's national economic well - being; and

  (ii)   it is necessary to intercept communications in order to obtain that foreign intelligence from foreign communications intercepted under the warrant; and

  (iii)   relying on a telecommunications service warrant or a named person warrant to obtain the intelligence would be ineffective;

the Attorney - General may, by warrant under his or her hand, authorise persons approved under section   12 in respect of the warrant, subject to any conditions or restrictions that are specified in the warrant, to intercept communications for the purpose of obtaining that foreign intelligence from foreign communications intercepted under the warrant.

  (2)   A warrant under subsection   (1) must not authorise the interception of any communications except for the purpose of obtaining foreign intelligence relating to a matter specified in the notice referred to in subsection   (1) from foreign communications intercepted under the warrant.

  (3)   A request by the Director - General of Security for the issue of a warrant under this section must:

  (a)   specify how the interception of communications is proposed to be conducted under the warrant, including how the risk of intercepting domestic communications will be minimised; and

  (b)   specify the facts and other grounds on which the Director - General of Security considers it necessary that the warrant should be issued, including the reasons the information cannot be collected by other means.

  (3A)   If the Director - General of Security requests the issue of a warrant under this section for the purpose of collecting information concerning a person who is an Australian citizen or permanent resident (see subsection   11D(5)), then:

  (a)   the Director - General must include details in the request about the grounds on which the Director - General suspects that the person is acting for, or on behalf of, a foreign power; and

  (b)   the Attorney - General must not issue the warrant unless the Attorney - General is satisfied that the person is, or is reasonably suspected by the Director - General of, acting for, or on behalf of, a foreign power.

  (4)   The Attorney - General must not issue a warrant under this section if the mandatory procedure under subsection   (6) is not in force.

  (4A)   If a warrant is issued under this section, then the Director - General of Security must prepare a notice that:

  (a)   is addressed to any carrier who operates any part of the telecommunications system that is covered by the warrant; and

  (b)   gives a description that is sufficient to identify that part of the telecommunications system covered by the warrant;

unless the Attorney - General is satisfied that the giving of such a notice would not be in the interests of national security or reasonable in the circumstances.

Destruction of irrelevant intercepted communications

  (5)   Where:

  (a)   a communication is intercepted under a warrant under this section; and

  (b)   the Director - General of Security is satisfied that the communication is not relevant to the purposes specified in the warrant;

the Director - General of Security must:

  (c)   cause all records of the communication to be destroyed (unless the communication relates, or appears to relate, to activities that present a significant risk to a person's life); and

  (d)   cause the Inspector - General of Intelligence and Security to be notified of the communication if all records of the communication are not caused to be destroyed because the communication relates, or appears to relate, to activities that present a significant risk to a person's life.

Mandatory procedure for all intercepted communications

  (6)   The Attorney - General must, in writing, issue a mandatory procedure (the mandatory procedure ):

  (a)   for screening communications intercepted under a warrant under this section for the purpose of identifying any domestic communications that may have been intercepted; and

  (b)   for destroying all records of any domestic communication so identified from that screening (other than a domestic communication that relates, or appears to relate, to activities that present a significant risk to a person's life); and

  (c)   for notifying the Inspector - General of Intelligence and Security of any identified domestic communication if all records of the communication are not destroyed because the communication relates, or appears to relate, to activities that present a significant risk to a person's life.

  (7)   The mandatory procedure may also deal with other matters relating to communications intercepted under a warrant under this section.

  (8)   A person must comply with the mandatory procedure to the extent that it applies to the person.

  (9)   Before issuing or varying the mandatory procedure, the Attorney - General must consult:

  (a)   the Minister for Defence; and

  (b)   the Minister for Foreign Affairs; and

  (c)   the Inspector - General of Intelligence and Security; and

  (d)   the Director - General of Security.

  (10)   The Attorney - General must review the mandatory procedure as soon as practicable after:

  (a)   the end of the first anniversary of the mandatory procedure being issued; and

  (b)   every 3 - year period after that;

but the Attorney - General may review the mandatory procedure at any other time as well.

  (10A)   The Attorney - General must, as soon as practicable, cause the Parliamentary Joint Committee on Intelligence and Security to be notified about the issuing or varying of the mandatory procedure.

  (10B)   The Parliamentary Joint Committee on Intelligence and Security may request a briefing on the mandatory procedure and on any variations to it.

  (11)   The mandatory procedure, or any variation of the mandatory procedure, is not a legislative instrument.

  (12)   For the purposes of this section, a domestic communication is a communication that is not a foreign communication.

Note:   Warrants are obtained under this section for the purpose of performing the function set out in paragraph   17(1)(e) of the Australian Security Intelligence Organisation Act 1979 .