Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2008
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
TELECOMMUNICATIONS (INTERCEPTION AND ACCESS) AMENDMENT BILL 2008
EXPLANATORY MEMORANDUM
(Circulated by authority of the Attorney-General,
the Honourable Robert McClelland MP)
TELECOMMUNICATIONS (INTERCEPTION AND ACCESS)
AMENDMENT BILL 2008
OUTLINE
1. The Bill will amend the Telecommunications (Interception and Access) Act
1979 (the TIA Act) to extend sunset provisions which relate to activities that can be
lawfully undertaken by network administrators of specific public sector agencies to
protect their corporate networks and maintain the professional standards of
employees.
2. This Bill will amend the TIA Act to extend the sunset provisions which apply
to the definitions of when a communication is `passing over' a telecommunications
network, as well as the definition of an `intended recipient' of a communication by a
further 18 months. The current provisions are set to sunset on 13 June 2008.
3. This Bill will also improve the effectiveness of the Australian
telecommunications access regime by:
· clarifying agencies' reporting requirements under the TIA Act,
· clarifying that multiple telecommunications devices can be intercepted on the one
named person warrant,
· making minor and technical amendments arising from the transfer of duties from
the Australian Federal Police (AFP) to the Attorney-General's Department
following the passage of the Telecommunications (Interception) Amendment Act
2006.
FINANCIAL IMPACT STATEMENT
The amendments made by the Telecommunications (Interception and Access)
Amendment Bill 2008 will have no financial impact.
NOTES ON CLAUSES
Clause 1 Short title
Clause 1 is a formal provision specifying the short title of the Bill. It provides that the
Act may be cited as the Telecommunications (Interception and Access) Amendment
Act 2008.
Clause 2 Commencement
This clause provides for the commencement of the Bill.
Sections 1 to 3 will commence on the day on which this Act receives the Royal
Assent.
Schedule 1 items 1 to 19, 26 to 34, 36 and 38 to 49 will commence on the day after
this Act receives the Royal Assent.
Schedule 1 items 20 to 25, 35 and 37 all relate to device-based named person warrants
which require administrative procedures to be put in place before commencement.
These items will therefore commence on a date to be fixed by proclamation. If at the
end of six months after Royal Assent, these items have not been proclaimed, they will
commence on the following day.
Clause 3 Schedule(s)
Clause 3 provides that each Act that is specified in a Schedule is amended or repealed
as set out in that Schedule.
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Schedule 1 - Telecommunications (Interception and Access) Act 1979
The main purpose of Schedule 1 is to extend the operation of sunset provisions to
enable the development of a full legislative solution that clarifies the basis on which
network administrators may access communications within their network for the
purposes of network security and the enforcement of professional integrity.
Networks are protected from security risks by the use of gateway control systems.
The use of these systems (such as virus protection software) does not generally
violate interception legislation. Automated systems can screen and reject incoming
communications if they are suspected of containing a virus, and network operators are
able to monitor internal and outbound communications (including emails and internet
browsing) provided they have obtained the consent of people using the network.
However, some network protection activities that take place at the threshold of a
network may constitute a technical breach of the TIA Act.
To enable the continued protection of specified highly secure networks the
amendments extend sunset provisions by 18 months to allow law enforcement and
security agencies to monitor all communications within their corporate networks for
the purpose of protecting and maintaining their network and enforcing professional
standards.
This Bill also makes other minor and technical amendments that will improve
operational efficiency of the TIA Act.
Item 1 - Subsection 5F(3)
Currently subsection 5F(2) provides an exemption to the normal definition of `passing
over' a telecommunications system for the purposes of a computer network operated
by or on behalf of a Commonwealth agency, a security authority or an eligible
authority of a State as defined in subsection 5(1).
Item 1 amends subsection 5F(3) to extend the sunset clause applying to the exemption
in subsection 5F(2) for a period of 18 months, being the end of 12 December 2009.
Item 2 - Subsection 5G(3)
Currently subsection 5G(2) extends the normal definition of `intended recipient' of a
communication to any employee of a Commonwealth agency, a security authority or
an eligible authority of a State responsible for operating, protecting or maintaining the
network or the enforcement of professional standards.
Item 2 amends subsection 5G(3) to extend the sunset clause applying to the
exemption in subsection 5G(2) for a period of 18 months, being the end of
12 December 2009.
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Items 3, 4, 5, 6, 7 - Section 9A
Section 9A allows the Director-General of Security to apply to the Attorney-General
for the issue of named person warrants. Named person warrants can relate to either
telecommunications services being used by a particular person, or `a particular
telecommunications device' used or likely to be used by the person.
Consistent with service-based name person warrants, item 3 amends subparagraph
9A(1)(b)(ii) to clarify that a device-based named person warrant issued under section
9A gives the authority to intercept multiple telecommunications devices.
Items 4, 5, 6 and 7 make consequential amendments to section 9A as a result of
item 3.
Items 8, 9, 10, 11 and 12 - Section 11B
Section 11B allows the Director-General of Security to apply to the Attorney-General
for the issue of named person telecommunications interception warrants for the
collection of foreign intelligence. Named person warrants can relate to either
telecommunications services being used by a particular person, or `a particular
telecommunications device' used or likely to be used by the person.
Consistent with service-based named person warrants, item 8 amends subparagraph
11B(1)(a)(ii) to clarify that a device-based named person warrant issued under section
11B gives the authority to intercept multiple telecommunications devices.
Items 9, 10, 11 and 12 make consequential amendments to section 11B as a result of
item 8.
Items 13 and 14 - Section 16
Section 16 requires a `certifying person' to notify the Managing Director of a carrier
when a device is to be added to a device-based named person warrant issued under
sections 9A or 11B.
Items 13 and 14 make consequential amendments to paragraphs 16(1)(aa) and
16(1A)(b) respectively as a result of items 3 and 8 to allow a certifying person to
notify the Managing Director of a carrier of additional devices to be added to a
device-based named person warrant.
Items 15, 16, 17 and 19 - Section 35
A State agency must be declared an interception agency by the Commonwealth
Minister before it can apply for a telecommunications interception warrant. Prior to a
declaration being made, appropriate State law is required to set out appropriate
accountability mechanisms. Section 35 sets out the required features of that
legislation, including the requirement for a State interception agency to provide a
copy of each warrant or instrument revoking such a warrant to the responsible State
Minister, who in turn must provide the copy of the warrant or revocation to the
Commonwealth Minister.
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Originally required as an accountability mechanism, the practice of the responsible
State Minister providing copies of warrants to the Commonwealth Minister is now an
unnecessary duplication. Following the passage of the Telecommunications
(Interception) Amendment Act 2006 interception agencies are required to provide
copies of warrants and revocations to the Secretary of the Commonwealth
Attorney-General's Department, who in turn provides them to the Commonwealth
Minister on a quarterly basis. This will also remove the mandatory requirement for
the responsible State Minister to receive copies of all warrants and instruments of
revocation.
Item 15 repeals paragraph 35(1)(b) to remove the mandatory requirement for a state
interception agency to provide a copy of each warrant and instrument of revocation to
the responsible State Minister.
Items 16 and 17 amend paragraphs 35(1)(c) and 35(1)(e) respectively to remove the
subsequent reporting requirements for the responsible State Minister to provide a
copy of the warrant or instrument of revocation to the Commonwealth Minister as a
result of item 15.
Item 19 inserts new section 36 to allow State legislation to make provision for the
relevant responsible State Minister to receive a copy of each warrant and instrument
of revocation where they wish to maintain this role. This is an optional feature of
State legislation.
Where a law of a State makes provision for the relevant responsible State Minister to
receive a copy of each warrant and each instrument of revocation, item 19 provides
that the disclosure of a copy of a lawfully issued telecommunications interception
warrant to a responsible State Minister is a lawful disclosure of telecommunications
interception warrant information.
Item 18 - Subsection 35(2)
Item 18 amends subsection 35(2) to remove the requirement for State interception
agencies to enter into a costs agreement with the AFP before it is declared under
section 34 to be eligible to apply for telecommunications interception warrants. This
reflects changes made by the Telecommunications (Interception) Amendment Act
2006 which removed the AFP's functions to action and cancel the operation of
warrants on behalf of other agencies.
State interception agencies must still enter into an agreement to pay all expenses
connected with the issue of warrants to that agency.
Items 20, 21, 22, 23, 24 and 25 - Warrants authorising agencies to intercept
communications
Division 3 of Part 2-5 allows an agency to apply to an eligible Judge or nominated
AAT member for a warrant in respect of a telecommunications service or a person.
Section 42 requires that where an agency applies for a telecommunications
interception warrant, each written application must be accompanied by an affidavit
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setting out specified information, including the facts and grounds on which the
application is based, the time period that the warrant would be in force and
information to identify each service or device to which, or person to whom, the
application relates.
An interception warrant may be obtained in relation to specific telecommunications
services or specific named persons. Named person warrants can relate to either
telecommunications services being used by a particular person, or `a particular
telecommunications device'.
Consistent with service-based named person warrants, item 20 amends paragraph
42(4A)(ba) to allow for multiple telecommunications devices to be included in the
affidavit accompanying an interception warrant application.
Consistent with service-based named person warrants, item 21 amends subparagraph
46A(1)(d)(ii) to allow for multiple telecommunications devices to be included on an
application for a device-based named person warrant.
Items 22, 23, 24 and 25 make consequential amendments to section 46A as a result of
item 21.
Items 26, 27, 28, 29, 30, 33 and 41 - Notification of issue and revocation of
warrants
The TIA Act specifies notification requirements for the issue and revocation of
interception warrants. The AFP formerly actioned and ceased interception of all
lawfully issued telecommunications interception warrants. Where a warrant was
issued or was going to be revoked by an agency, the AFP was required to be notified
of the issue or impending revocation to enable them to action or cease the interception
as required.
Telecommunications interception warrants and instruments of revocation are now
provided directly to the relevant carrier by each agency to which the warrant was
issued. A copy of a warrant and an instrument of revocation are also provided to the
Secretary of the Attorney-General's Department. While a warrant comes into effect
at the time it is issued, a revocation comes into effect when the instrument of
revocation is received by the Secretary of the Department.
The transfer of the oversight functions in relation to the issuing and revocation of
warrants from the AFP to the Attorney-General's Department in the
Telecommunications (Interception) Amendment Act 2006, has resulted in duplicate
reporting requirements to the Secretary of the Attorney-General's Department.
Item 26 amends subsection 52(2) to remove the requirement for the Secretary of the
Attorney-General's Department to be informed that an instrument of revocation is
going to be made where a warrant has been revoked by a Judge or nominated AAT
member. This requirement is unnecessary as the Attorney-General's Department
plays no role in the actioning of warrants.
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Item 27 repeals section 53 to remove duplicate notification requirements in relation to
the issue of a warrant. New section 59A at item 31 consolidates the requirements for
agencies' to notify the Secretary of the Attorney-General's Department in relation to
the issuing of a warrant.
Item 28 amends paragraph 57(1)(a) to remove the requirement that the Secretary of
the Attorney-General's Department be informed that an agency intends to revoke a
warrant on the basis that the grounds for the issue of the warrant no longer exist. The
notification requirement was in place to enable preparation for the cessation of
interception. However, as the Attorney-General's Department plays no role in this,
the notification is not necessary.
Items 29 and 30 amend section 57 to remove the requirement that the Secretary of the
Attorney-General's Department be informed of an intended revocation. As the
Department has no role in ceasing the interception this notification is unnecessary.
The Secretary of the Attorney-General's Department will continue to be provided
with a copy of the instrument as soon as practicable.
Items 33 and 41 make consequential amendments to sections 60 and 80 respectively
as a result of item 27.
Item 31 - Section 59A Notifications to Secretary of the Attorney-General's
Department
Item 31 inserts new section 59A to consolidate the requirements for an agency to
notify the Secretary of the Attorney-General's Department in relation to lawfully
issued telecommunications interception warrants.
New subsection 59A(1) provides that the chief officer of an agency must provide a
copy of every warrant issued to the agency to the Secretary of the Attorney-General's
Department.
New subsection 59A(2) provides that where it is proposed to intercept additional
services that are not identified in a service-based name person warrant, the chief
officer of the agency must provide, in writing to the Secretary of the Attorney-
General's Department, a description sufficient to identify the services to be added to a
warrant.
New subsection 59A(3) provides that where it is proposed to intercept additional
devices that are not identified in the device-based named person warrant, the chief
officer of the agency must provide, in writing to the Secretary of the Attorney-
General's Department, a description sufficient to identify the devices to be added to a
warrant.
Items 32, 34, 39 and 40 - Section 60
Section 60 places a requirement on the chief officer of an interception agency to
notify the Managing Director of a carrier of the issue or revocation of certain
telecommunications interception warrants. The chief officer of an agency must notify
the Managing Director that a telecommunications service warrant has been issued or
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revoked, and provide a copy of the warrant, certified as a true copy by a certifying
officer, to the Managing Director.
Items 32, 34, 39 and 40 amend section 60 to provide that a `certifying officer' of an
agency shall notify the Managing Director that a telecommunications service warrant
has been issued or revoked, rather than the chief officer of the agency, to allow
greater operational flexibility for agencies, whilst still maintaining an appropriate
level of accountability.
Items 35, 36, 37 and 38 - Section 60
Section 60 of the TIA Act requires an agency to notify the Managing Director of a
carrier of the issue or revocation of a warrant under Part 2-5, including where a
service or device is to be added to a named person warrant.
Items 35 and 37 make consequential amendments to the TIA Act as a result of item
21 to require the Managing Director of a carrier to be notified of additional devices to
be added to a device-based named person warrant.
Items 36 and 38 amend section 60 to correct an inaccurate reference that requires a
`certifying person' to notify the Managing Director where additional devices are
added to a device-based named person warrant. `Certifying person' is defined as one
of a group of employees of the Australian Security Intelligence Organisation and the
provisions should refer instead to a `certifying officer' who is defined as an officer of
the Senior Executive Service or an equivalent rank in the relevant agency.
Item 42 - Subsection 94(1)
Section 94 sets out reporting requirements in relation to Commonwealth interception
agencies, which are:
· the Australian Federal Police
· the Australian Commission for Law Enforcement Integrity, and
· the Australian Crime Commission.
Subsection 94(1) requires the chief officer of a Commonwealth agency to give to the
Minister a copy of each warrant issued and each instrument of revocation as soon as
practicable after the issue or revocation of the warrant.
As part of the transfer of oversight responsibilities from the AFP to the
Attorney-General's Department following the passage of the Telecommunications
(Interception) Amendment Act 2006, all agencies are required to provide a copy of
each warrant issued and each revocation instrument to the Secretary of the
Attorney-General's Department under new section 59A and 57 respectively. These
warrants are entered into the General and Special Registers of Warrants and provided
to the Minister on a quarterly basis.
Item 42 repeals subsection 94(1) to remove the duplicate reporting requirements for
Commonwealth agencies to provide copies of all warrants and instruments of
revocation to the Minister.
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Items 43, 44, 45, 46, 47, 48 - Section 100
Division 2 of Part 2-8 sets out the requirements for an annual report which must
contain statistical information about warrants issued under the TIA Act.
Items 43 and 46 remove the redundant requirement for the inclusion of relevant
statistics for warrant applications under Part 2-5 that would authorise entry on to
premises. This requirement is redundant because a Part 2-5 warrant does not
authorise entry on to premises.
Items 44, 45, 47 and 48 repeal paragraphs 100(1)(ee), 100(1)(ef), 100(2)(ee) and
100(2)(ef) to remove duplicate reporting requirements in relation to the number of
B-Party warrants issued by agencies.
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