Commonwealth Numbered Acts Commonwealth Numbered ActsTelecommunications (Interception) Amendment Act 2006
1 Item 8 of Schedule 5
Omit " (c) ", substitute " (d) ".
Note: This item corrects a misdescription of text in an amending item.
Telecommunications (Interception and Access) Act 1979
2 Subsection 5(1) (subparagraphs (d)(ii), (e)(ii) and (g)(iii) of the definition of certifying officer )
Omit " Public Sector Management Act 1988 ", substitute " Public Sector Employment and Management Act 2002 ".
3 Subsection 5(1)
Insert:
"security authority" means an authority of the Commonwealth that has functions primarily relating to:
(a) security; or
(b) collection of foreign intelligence; or
(c) the defence of Australia; or
(d) the conduct of the Commonwealth's international affairs.
4 After subsection 5(4A)
Insert:
(4B) A reference in this Act to an employee of a security authority includes a reference to a person who is engaged by the security authority or whose services are made available to the security authority.
5 After paragraph 5B(1)(b)
Insert:
(ba) a proceeding under the Spam Act 2003 ; or
6 Subparagraphs 5D(2)(b)(viii) and (ix)
Repeal the subparagraphs.
7 After subsection 5D(3A)
Insert:
Offences relating to child pornography
(3B) An offence is also a serious offence if the particular conduct constituting the offence involved, involves or would involve, as the case requires:
(a) the production, publication, possession, supply or sale of, or other dealing in, child pornography; or
(b) consenting to or procuring the employment of a child, or employing a child, in connection with child pornography.
8 Paragraph 5D(4)(c)
Omit "section 122 of the Confiscation Act 1997 ", substitute "section 194, 195 or 195A of the Crimes Act 1958 ".
9 Paragraph 5D(4)(f)
Omit "section 10b of the Crimes (Confiscation of Profits) Act, 1986 ", substitute "section 138 of the Criminal Law Consolidation Act 1935 ".
10 At the end of subsection 5D(4)
Add:
; (i) Division 3A of Part VII of Schedule I to the Criminal Code Act of the Northern Territory.
11 Subsection 5F(2)
Repeal the subsection, substitute:
(2) However, if a communication is sent from an address on a computer network operated by or on behalf of:
(a) a Commonwealth agency; or
(b) a security authority; or
(c) an eligible authority of a State;
the communication is taken not to start passing over a telecommunications system, for the purposes of this Act, until it is no longer under the control of any of the following:
(d) any employee, member of staff or officer of the agency or authority responsible for operating, protecting or maintaining the network;
(e) any employee, member of staff or officer of the agency or authority responsible for enforcement of the professional standards (however described) of the agency or authority.
12 Subsection 5G(2)
Repeal the subsection, substitute:
(2) In addition to the person who is the intended recipient of a communication under subsection (1), if a communication is addressed to a person at an address on a computer network operated by or on behalf of:
(a) a Commonwealth agency; or
(b) a security authority; or
(c) an eligible authority of a State;
each of the following is also an intended recipient of the communication for the purposes of this Act:
(d) any employee, member of staff or officer of the agency or authority responsible for operating, protecting or maintaining the network;
(e) any employee, member of staff or officer of the agency or authority responsible for enforcement of the professional standards (however described) of the agency or authority.
13 At the end of paragraphs 7(2)(a), (aa), (ab) and (ac)
Add "or".
14 At the end of subsection 7(2)
Add:
; or (d) the interception of a communication under an authorisation under section 31A.
15 Subsection 9A(1A) (the subsection (1A) inserted by item 7 of Schedule 1 to the Telecommunications (Interception) Amendment Act 2006 )
Renumber as subsection (1C).
16 After Part 2‑3
Insert:
Part 2‑4 -- Authorisation of interception for developing and testing interception capabilities
31 Applications for authorisation
(1) The head (however described) of a security authority that has functions that include activities relating to developing or testing technologies, or interception capabilities, or a person acting as that head, may request the Attorney‑General to authorise, under section 31A, interception of communications passing over a telecommunications system by employees of the authority authorised under section 31B.
(2) The request:
(a) must be in writing; and
(b) must include details of the development or testing of technologies, or interception capabilities, in relation to which authorisation is sought; and
(c) must include details of the extent to which the development or testing would involve, or would be likely to involve, interception of communications passing over a telecommunications system; and
(d) must refer to the functions of the authority that the development or testing would support; and
(e) must state the grounds for seeking the authorisation; and
(f) must summarise the outcomes of any previous authorisations given to the authority under section 31A in relation to the technology or interception capability that is the subject of the application; and
(g) must nominate the period (not exceeding 6 months) for which the authorisation is sought to be in force.
31A Attorney‑General may authorise interception for developing and testing interception capabilities
(1) Upon receiving the request, the Attorney‑General may authorise interception of communications passing over a telecommunications system by employees of the security authority authorised under section 31B.
(2) The authorisation is subject to:
(a) a condition prohibiting:
(i) interception of communications passing over a telecommunications system except for the purposes of development or testing of technologies, or interception capabilities; or
(ii) communicating, using or recording such communications except for such purposes; and
(b) any other conditions specified in the authorisation.
(3) The authorisation must be in writing and must specify the period (not exceeding 6 months) for which it will have effect.
(4) The head (however described) of the security authority, or a person acting as that head, must ensure that a copy of the authorisation is kept by the authority and is available for inspection on request by the Minister who is responsible for the authority.
(5) An authorisation given under subsection (1) is not a legislative instrument.
31B Authorisation of employees of a security authority
(1) The following persons:
(a) the head (however described) of a security authority;
(b) an officer of the security authority covered by an approval in force under subsection (2);
may, by writing, authorise employees of the authority for the purposes of this Part.
(2) The head (however described) of a security authority may, by writing, approve an officer of the authority for the purposes of paragraph (1)(b).
If:
(a) information, or a record, that was obtained, in the course of developing or testing technologies or interception capabilities, by interception of communications passing over a telecommunications system is in a security authority's possession; and
(b) the information or record is no longer required in relation to the development or testing;
the head (however described) of the security authority, or a person acting as that head, must cause the information or record to be destroyed as soon as practicable.
31D Reports to the Attorney‑General
The head (however described) of a security authority, or a person acting as that head, must give to the Attorney‑General, within 3 months after an authorisation under section 31A given to the authority ceases to have effect, a written report about:
(a) the outcome of the development or testing of technologies, or interception capabilities, in relation to which the authorisation was given; and
(b) the destruction of information or records under section 31C.
17 Subsection 61(1)
Repeal the subsection, substitute:
(1) The following:
(a) the Managing Director of a carrier;
(b) the secretary of a carrier;
(c) an employee of a carrier authorised in writing for the 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.
18 Subsection 61(2)
After "secretary", insert ", or an employee,".
19 Paragraph 139(2)(a)
After "agency", insert "or by another enforcement agency".
20 After paragraph 139(4)(b)
Insert:
(ba) a proceeding under the Spam Act 2003 ; or
21 At the end of subsection 139(4)
Add:
; or (f) a police disciplinary proceeding.
Part 2 -- Application and transitional provisions
22 Application--exempt proceedings
The amendment made by item 5 of this Schedule applies in relation to proceedings instituted before or after the commencement of that item.
23 Application--serious offences
The amendment made by item 7 of this Schedule applies in relation to conduct engaged in before or after the commencement of that item.
24 Transitional--continuation of evidentiary certificates
A certificate in force immediately before the commencement of this item under subsection 61(1) of the Telecommunications (Interception and Access) Act 1979 continues in force after that commencement as if it had been issued under that subsection after that commencement.
25 Application--permitted dealings with accessed information
The amendments made by items 20 and 21 of this Schedule apply in relation to proceedings instituted before or after the commencement of those items.
26 Transitional--issue of evidentiary certificates in relation to old warrants
Paragraph 61(4)(a) of the Telecommunications (Interception and Access) Act 1979 applies as if a reference to a Part 2‑5 warrant included a reference to a warrant issued under Part VI of that Act as in force before 13 June 2006.
[ Minister's second reading speech made in--
House of Representatives on 14 June 2007
Senate on 16 August 2007 ]
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