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2008-2009-2010
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
TELECOMMUNICATIONS INTERCEPTION AND INTELLIGENCE SERVICES LEGISLATION
AMENDMENT BILL 2010
EXPLANATORY MEMORANDUM
(Circulated by authority of the Attorney-General,
the Honourable Robert McClelland MP)
TELECOMMUNICATIONS INTERCEPTION AND INTELLIGENCE SERVICES LEGISLATION
AMENDMENT BILL 2010
OUTLINE
The main purpose of this Bill is to amend the
Telecommunications (Interception and Access) Act 1979 (the TIA Act), the
Australian Security Intelligence Organisation Act 1979 (the ASIO Act) and
the Intelligence Services Act 2001 (the IS Act) to enable greater
cooperation, assistance and information sharing within Australia's law
enforcement and national security communities.
The inaugural National Security Statement delivered to Parliament on
4 December 2008, highlighted the need for a closer relationship between the
agencies that make up the national security community. The National
Security Statement also acknowledged the critical need for the sharing of
intelligence and data in the current security environment. The failed
terrorist attack on North West Airlines Flight 253 on 25 December 2009 also
highlighted the need for intelligence, law enforcement and other national
security agencies to be well connected and the need to remove legislative
barriers to interoperability and intelligence sharing.
The Bill will enable the Australian Security Intelligence Organisation
(ASIO), the Australian Secret Intelligence Service (ASIS), the Defence
Signals Directorate (DSD) and the Defence Imagery and Geospatial
Organisation (DIGO) to more closely cooperate and to assist one another in
the performance of one another's functions. This measure will facilitate
these agencies being able to work together and harness resources in support
of key national security priorities.
In the case of ASIO, the Bill also provides for amendments to the
communication provisions in the ASIO Act to provide greater flexibility for
ASIO to share information obtained in the performance of ASIO's functions
with other Australian intelligence agencies and with the broader national
security community. These amendments will facilitate greater intelligence
sharing among the national security community, which will support ASIO's
capacity to cooperate with and assist other national security agencies.
ASIO has expertise in a number of areas that would assist law enforcement
agencies to access information and to respond in a timely manner. This
Bill will specifically enable ASIO to cooperate with and provide assistance
to law enforcement agencies in relation to telecommunications interception
and other areas of expertise such as technical support, logistics and
analytical assistance and advice.
In assisting law enforcement agencies, ASIO will be subject to existing
legislative requirements contained in the TIA Act and the ASIO Act. The
Bill does not affect the distinction between law enforcement and
intelligence functions, arrests and prosecutions will remain a matter for
police and prosecutorial authorities. ASIO's primary function will remain
gathering and analysing intelligence. The Bill also implements other
measures in the TIA Act that will improve the operation of this Act by:
a) requiring carriers and nominated carriage services providers
(C/NCSPs) to regularly inform the Communications Access Co-ordinator
(CAC) of proposed changes to
telecommunications services and networks which may have a material
adverse effect on a C/NCSPs ability to meet its various legal
obligations in the TIA Act and the Telecommunications Act 1997
b) enabling telecommunications data, such as call records, to be
obtained and used by Police Forces to assist in finding missing
persons
c) enabling enforcement agencies access to the stored communications of
victims of crime in circumstances where victims are unable to be
notified, and
d) permitting delegation of the person within a carrier and carriage
service provider who is required to be notified when a
telecommunications warrant is issued.
The Bill will also make a number of minor and technical changes to rectify
formatting and typographical errors and modernise drafting.
FINANCIAL IMPACT STATEMENT
The amendments made by the Telecommunications Interception and Intelligence
Services Legislation Amendment Bill 2010 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 Intelligence Services Legislation Amendm
ent Act 2010.
Clause 2 Commencement
Clause 2 provides for the commencement of the Bill.
This Act will commence on the day after this Act receives Royal Assent.
Clause 3 Schedule(s)
Clause 3 provides that each Act that is specified in a Schedule is amended
or repealed as set out in the applicable items in the Schedule concerned,
and any other item in a Schedule to this Act has effect according to its
terms.
Schedule 1 - Exercise of warrant powers
Telecommunications (Interception and Access) Act 1979
Schedule 1 amends the Telecommunications (Interception and Access) Act 1979
(the TIA Act) to enable the Australian Security Intelligence Organisation
(the Organisation) to provide technical assistance to law enforcement
agencies in relation to telecommunications interception warrants issued to
those agencies.
Section 55 of the TIA Act already allows law enforcement agencies to
approve officers or classes of officers of another interception agency to
exercise the authority conferred by a telecommunications interception
warrant. However, section 55, in its current form, does not allow an
officer of the Organisation to be a recipient of this conferral. Schedule
1 will primarily amend section 55 to allow the Organisation to assist
enforcement agencies in relation to warrants issued under Part 2-5 of the
TIA Act.
The addition of the reference to classes of officers, staff members and
persons assisting the Organisation will facilitate the Organisation to
provide the necessary range of technical and logistical assistance and
support to other agencies exercising powers conferred by Part 2-5
Warrants.
Schedule 1 also makes associated amendments relating to the notification of
a warrant being issued, the revocation of warrants, the issuing of
evidentiary certificates in relation to things done through those warrants
and associated record-keeping and reporting requirements. The Schedule
also contains amendments to incorporate plain English drafting into the
Parts of the TIA Act amended by this Schedule.
Items 1 and 2 - Paragraph 52(1)(a) and subsection 52(2)
Items 1 and 2 modernise the TIA Act's drafting. These amendments do
not affect the TIA Act's operation.
Item 3 - Subsection 52(3)
Section 52 of the TIA Act requires certain steps to be taken by an
interception agency where an eligible Judge or nominated Administrative
Appeals Tribunal member revokes a warrant which was issued by way of an
application made via telephone under section 51 of the TIA Act. These
steps include obligations relating to persons upon whom the authority
to exercise a warrant has been conferred.
Item 3 amends subsection 52(3) of the TIA Act to include circumstances
where an employee or an officer of the Organisation, or a person
assisting the Organisation perform its functions, is exercising the
authority conferred by a warrant to ensure that the Director-General of
Security is notified that the warrant has been revoked and interception
immediately ceases. The drafting of section 52 has also been
modernised.
Item 4, 5 and 6 - Subsections 55(1), 55(3) and 55(5)
The TIA Act regulates the persons who can exercise the authority of an
interception warrant that has been issued to a law enforcement agency
under Part 2-5 of the TIA Act (that is, a warrant issued to an
interception agency other than the Organisation).
Section 55 establishes the persons who can be authorised to exercise
the authority of a warrant. The chief officer of an agency (or a
person authorised under subsection 55(4)) can currently authorise:
. officers or staff members of the chief officer's agency
. classes of officers or staff members of the chief officer's agency
. officers or staff members of another interception agency (other than
the Organisation), or
. classes of officers or staff members of another interception agency
(other than the Organisation).
Items 4 and 6 amend subsections 55(1) and 55(5) as a consequence of
expanding the persons who can be authorised to exercise the authority
of a warrant at Item 5.
Item 5 amends subsection 55(3) to allow the chief officer of an agency
(or their delegate) to authorise relevant persons from the
Organisation, or persons assisting the Organisation in the performance
of its functions, to exercise the authority of an interception warrant
to facilitate the interception.
Item 7 - At the end of section 55
Item 7 inserts new subsection 55(8) to clarify that a person mentioned
under paragraph 55(3)(d) is acting on behalf of the Organisation and
that it is the Organisation that is exercising the warrant's authority.
Paragraph 55(3)(d) enables a person assisting the Organisation in the
performance of its functions to be authorised to exercise the authority
of a warrant issued to an agency. This provision mirrors the breadth
of section 12, which is the corresponding provision to section 55 in
relation to warrants issued to the Organisation. Section 12 is
designed to include persons who assist the Organisation with the
execution of a warrant.
This provision clarifies that the nature of this assistance does not
remove the Organisation's responsibility for that person's actions.
If the person providing the assistance to the Organisation is a member
of an agency to which the provisions of the Intelligence Services Act
2001 (IS Act) apply, and that person is providing assistance to ASIO
pursuant to proposed new section 13A of the IS Act (Schedule 6), that
the person must also comply with any relevant directions issued by the
relevant Minister and/or agency head pursuant to the cooperation
arrangement.
Items 8 and 9 - Subsections 57(1), (2), (3) and (4)
Section 57 of the TIA Act sets out the steps that must be taken by an
agency when a Part 2-5 warrant is revoked by the chief officer of the
agency. Section 57 first sets out the grounds on which a warrant can
be revoked (as well as when a revocation is mandatory). It also sets
out the obligations of the chief officer of the agency (who has revoked
a warrant), to notify any person who is exercising the authority of the
warrant.
Item 8 amends these provisions to ensure that the Organisation is
adequately informed if it is exercising the authority of another
agency's warrant when that warrant is revoked. This is necessary to
ensure interception is only conducted pursuant to a warrant.
Item 9 makes consequential amendments to subsection 57(4) as a result
of Item 8. The amendments also modernise the drafting of section 57.
Items 10, 11, 12 and 13 - Subsections 58(1) and (2)
Section 58 of the TIA Act sets out the obligations on a person who has
been notified of a revocation made pursuant to section 57 of the TIA
Act. The key requirement is that the agency must take steps to stop the
interception once it has been informed that an interception warrant has
been revoked.
Items 10, 11, 12 and 13 amend section 58 to include circumstances when
another agency (including the Organisation) is exercising the authority
of an interception warrant.
The amendments also modernise the drafting of section 58.
Item 14 - Section 59
Item 14 makes a consequential amendment to section 59 of the TIA Act as
a result of Item 8.
Item 15 - Paragraphs 60(1)(c), (3)(c) and (5)(c)
Item 15 replaces the phrase 'forthwith' with 'immediately' in
paragraphs 60(1)(c), 60(3)(c) and 60(5)(c) to modernise the language
used. The amendments are not intended to affect the operation of the
provision.
Item 16 - After subsection 61(4)
Evidentiary certificates are prepared by both the Organisation and law
enforcement agencies to include facts relating to the execution of
interception warrants. These certificates are then taken as prima
facie evidence in an exempt proceeding. Evidentiary certificates are
designed to protect sensitive capabilities of agencies in relation to
their ability to intercept and process communications.
Item 16 inserts new subsection 61(4A) so that an evidentiary
certificate may be issued by the Organisation when it provides
assistance to law enforcement agencies relating to a warrant issued
under Part 2-5 of the TIA Act.
Item 17 - Subsection 61(5)
Item 17 makes consequential amendments to 61(5) as a result of Item 16.
Item 17 provides that a certificate issued under new subsection 61(4A)
is prima facie evidence.
Item 18 - At the end of section 64
In addition to limiting the grounds for which a warrant can be issued,
the TIA Act also limits how information that has been obtained through
telecommunications interception ('lawfully intercepted information', as
defined in section 6E of the TIA Act) may be used or disclosed.
Section 63 of the TIA Act places a general prohibition on the use of
intercepted information. Section 64 of the TIA Act provides an
exception to this prohibition, allowing certain people to use or
disclose intercepted information, warrant information (as defined in
section 6EA) or foreign intelligence information (as defined in section
5) in connection with the Organisation's functions or for the purposes
of security. Section 68 of the TIA Act allows a chief officer of an
agency to disclose intercepted information to the Organisation, where
the information relates to activities prejudicial to security, and to
another agency where the information appears to relate to a matter or
proceeding for which the second agency has jurisdiction.
Item 18 inserts new subsections 64(3) and (4) which provides that the
Organisation, or persons assisting the Organisation in the performance
of its functions, is not able to use or disclose information obtained
by intercepting on behalf of another agency, or otherwise providing
technical assistance in relation to telecommunications interception,
for its own purposes.
The Organisation, or persons assisting the organisation in the
performance of its functions, may only use or disclose information
obtained by intercepting on behalf of another agency, or otherwise
providing technical assistance in relation to telecommunications
interception, where the information has been communicated to the
Director-General of Security in accordance with section 68 of the TIA
Act or for purposes connected with the investigation under which the
information was obtained.
The intention of this provision is to maintain existing controls on
dealing with intercepted information and related information and
prevent the capacity sharing function resulting in an erosion of
existing safeguards in the TIA Act.
Item 19 - At the end of section 65
Section 65 of the TIA Act regulates how the Organisation can disclose
intercepted information to other agencies. This section allows the
Director-General of Security to communicate intercepted information and
related information in accordance in accordance with the ASIO Act.
Item 19 inserts new subsection 65(3) to provide that the Organisation
cannot disclose information it obtains when exercising the authority of
a warrant conferred upon it under section 55 of the TIA Act. The
provisions are designed to operate so that once the assisted agency
receives the information, it has the discretion to disclose it to the
Organisation, for the Organisation's use, in accordance with section 68
of the TIA Act.
The intention of this provision is to maintain existing controls and
safeguards on the use and disclosure of intercept and related
information.
Items 20 and 21 - Section 66
Section 66 of the TIA Act allows an interceptor of a communication to
disclose the information to the agency that has been issued the
warrant. This provision is designed to allow employees of carriers
intercepting the communication, as well as the monitors of intercepted
traffic at the agency, to disclose intercepted information to
investigators.
Item 20 makes a consequential amendment to paragraph 66(1)(b) as a
result of Item 5, to allow the Organisation to intercept communications
on behalf of an interception agency.
Item 21 amends subsection 66(2) to provide that the chief officer of an
agency may authorise, in writing, any person referred to in paragraphs
55(a) to (c) to receive, from the interceptor, information obtained by
interceptions under warrants issued to the agency. This will
facilitate the Organisation or an agency conducting interception on
behalf of another agency, undertaking technical assistance and then
passing the information to the investigative officer within the agency
which obtained the warrant.
Item 21 also inserts new subsection 66(3) to provide that where the
chief officer of an agency authorises a person outside of the agency
that obtained the warrant, the authorisation must only extend to
purposes related to the investigation to which the warrant relates.
The intention of this limitation is to maintain existing controls and
safeguards in the TIA Act on dealing with intercept and related
information.
Item 21 also inserts new subsection 66(4) to provide that a chief
officer of an agency may delegate the authority under subsection 66(2)
to authorise persons to receive intercepted information.
Item 22 - After subsection 67(1)
Section 67 of the TIA Act mirrors section 64, except that, rather than
outlining the permitted uses for the Organisation, it relates to how
intercepted information can be used by other interception agencies.
Item 22 amends subsection 67(1) to ensure that agencies intercepting on
behalf of, or providing technical assistance another agency, cannot use
the information obtained for their own purposes.
Items 23, 24 and 25 - Section 81
Section 81 of the TIA Act outlines specific record keeping obligations
on Commonwealth interception agencies in relation to warrants issued
under Part 2-5 of the TIA Act. The TIA Act relies on parallel State
laws to place similar obligations on State agencies. Section 35 of the
TIA Act requires the Attorney-General to be satisfied that similar
State laws are in place prior to a State agency being declared as an
interception agency. The relevant oversight body may inspect these
records as part of its oversight functions. The Organisation has
separate record keeping, reporting and oversight arrangements and is
subject to inspection by the Inspector General of Intelligence and
Security.
Item 23 inserts new subsection 81(2A) to require the Director-General
of Security, when the Organisation is intercepting on behalf of a
Commonwealth interception agency, to record and provide the agency with
any information it requires to meet its record keeping obligations in
subparagraphs 81(1)(c)(ii), (iii) and (iv), and paragraph 81(1)(d) of
the TIA Act.
Item 25 inserts new section 81AA to require the Director-General of
Security, when the Organisation is intercepting on behalf of a State or
Territory interception agency, to record and provide the agency with
any information it requires to meet its record keeping obligations in
subparagraphs 81(1)(c)(ii), (iii) and (iv), and paragraph 81(1)(d) of
the TIA Act.
Item 24 makes a consequential amendment to subsection 81(3) as a result
of Item 23.
Item 26 - After paragraph 103(ac)
Section 103 of the TIA Act contains reporting requirements for
interception agencies in relation to statistics on the use, duration,
cost and success of interception warrants.
Item 26 inserts new paragraph 103(aca) to provide that the Annual
Report on warrants issued under Part 2-5 of the TIA Act include the
number of interceptions conducted by the Organisation on behalf of
other agencies. The requirement is placed on the agency on whose
behalf the Organisation has intercepted.
Item 27 - Subsections 127(1) and (2)
Section 127 of the TIA Act is the equivalent to section 55 in relation
to stored communications warrants rather than interception warrants.
Item 27 makes consequential amendments to section 127 as a result of
Item 5 to ensure that the language used is consistent.
Item 28 - Saving provision in relation to items 5 and 27
Item 29 is a saving provision to clarify that all persons authorised
under subsections 55(3) or 127(2) of the TIA Act to exercise the
authority of a warrant prior to Schedule 1 commencing will continue to
be authorised persons for these purposes after Schedule 1 has
commenced. This saving provision will prevent State and Territory
Police Forces from having to re-issue the relevant authorisations.
Item 29 - Saving provision in relation to item 9
Item 29 is a saving provision to clarify that a delegation made under
subsection 57(4) of the TIA Act by the chief officer of an agency to
revoke an interception warrant under subsection 57(2) of the TIA Act
that was in force immediately before the commencement of Schedule 1,
has effect after the Schedule commences.
Schedule 2 - Requirement to inform of proposed changes
Telecommunications (Interception and Access) Act 1979
Chapter 5 of the Telecommunications (Interception and Access) Act 1979
(the TIA Act) places obligations on the telecommunications industry to
provide assistance to interception agencies. Three classes of industry
members are subject to obligations:
. carriers
. carriage service providers, and
. nominated carriage service providers.
Carriers and carriage service providers (C/CSPs) are defined in the TIA
Act by reference to the respective definitions in the
Telecommunications Act 1997 (Telecommunications Act). In short, the
distinction between the two is that a carrier owns telecommunications
infrastructure, whilst a carriage service provider operates services
which pass over that infrastructure.
A 'nominated carriage service provider' is a term specific to the TIA
Act. The Attorney-General, as the Minister responsible for the TIA
Act, may nominate a carriage service provider under subsection 197(4).
Part 5-4 of the TIA Act requires Carriers and Nominated Carriage
Service Providers (C/NCSPs) to submit an interception capability plan
(IC plan) to the Communications Access Co-ordinator (CAC). Section 195
of the TIA Act details the required contents of an IC plan, including
each C/NCSP's strategy to comply with its legal obligations with
respect to interception. Sections 196 and 197 of the TIA Act require
that IC plans be submitted annually. Section 200 of the TIA Act
requires that C/NCSPs ensure that business activities are consistent
with IC plans.
Section 201 of the TIA Act requires C/NCSPs to submit a revised IC plan
to the CAC if an IC plan ceases due to changes to a C/NCSP's business
plan. This provision requires that an IC plan be updated if there is
any change to a matter set out in section 195. Agencies need to be
aware of changed business plans because they may have a material impact
on a C/NCSP's ability to meet their obligations under the TIA Act and
the Telecommunications Act.
The limitation of existing provisions is that notification is only
required after a change is made. A notification to interception
agencies, through the CAC, earlier in the development process gives an
opportunity for the proposed developments to be varied to include
adequate interception capabilities, or to deal with other important
issues.
Early government involvement ensures continuity of interception and
delivery capabilities while maximising cost efficiency by inputting
during the design stage.
To implement such a notification scheme, this Schedule inserts new Part
5-4A into the TIA Act. New Part 5-4A will ensure that C/NCSPs inform
the CAC in a sufficiently timely manner of changes to
telecommunications services, networks, systems or devices which would
adversely affect the ability to conduct interception, or to comply with
relevant requirements in the Telecommunications Act.
Previous Part 15 Division 4 of the Telecommunications Act titled
'Requirements arising from proposed technological changes' required
C/NCSPs to give notice to the Australian Communications Authority (now
Australian Communications and Media Authority) of the particulars of
any new technology, or change to existing technology, whose
implementation may affect the capacity of the carrier or provider to
provide help to agencies. New Part 5-4A of the TIA Act is modelled in
part on those provisions.
Item 1 - Subsection 5(1) (definition of carriage service provider)
Item 1 inserts a definition of 'carriage service provider' into section 5
of the TIA Act.
Currently, a carriage service provider is included within the definition of
'carrier' in section 5 and is further defined in section 194 for the
purposes of Part 5-4 by its definition in the Telecommunications Act. This
is because Part 5-4 places specific obligations on nominated carriage
service providers and so Part 5-4 currently sets out the distinctions
between carriers, carriage service providers and nominated carriage service
providers (NCSPs).
As the proposed Part 5-4A will also place obligations on NCSPs, the
relevant definitions will now be placed in section 5 of the TIA for ease of
reference.
Item 2 - Subsection 5(1) (definition of carrier)
Item 2 amends the definition of carrier to exclude carriage service
providers from the application of Parts 5-4 and 5-4A. Currently, the TIA
Act contains a separate definition of carrier for the purposes of Part 5-4.
However, because the Bill will insert new Part 5-4A which also only
applies to nominated carriage service providers, the definition of carrier
in section 5 of the TIA Act will provide the limitation of when the
definition of carrier does not also include a carriage service provider,
for ease of reference
Item 3 - Subsection 5(1) (definition of nominated carriage service
provider)
Consistent with Items 1 and 2 to include relevant definitions within
section 5 of the TIA Act, Item 3 inserts a definition of 'nominated
carriage service provider' into section 5 of the TIA Act.
Item 3 transfers the definition of 'nominated carriage service provider'
from section 194 to
section 5 so that the definitions of carrier, carriage service provider and
nominated carriage service provider are all located in the interpretation
section of the TIA Act.
Item 4 - Subsection (5)(1) (definition of notifiable equipment)
Item 4 inserts a definition of the term 'notifiable equipment' into section
5 of the TIA Act.
The purpose of Part 5-4A is to require C/NSCPs to inform the CAC of
proposed changes which may have an impact on a C/NCSP's ability to comply
with its obligations to assist interception agencies.
The Bill introduces the defined term 'notifiable equipment' to establish
which changes fall within this category. Paragraph (a) of the definition
intends to capture, in a technologically neutral manner, the equipment
which forms a part of the carrier or carriage service provider's ability to
transmit communications. Paragraph (b) of the definition intends to capture
the equipment which manages the transmission of communications. Paragraph
(c) includes equipment that manages the data which is created in the course
of managing communications passing over the C/NCSP's systems, which is
protected from misuse by section 276 of the Telecommunications Act.
Item 5 - Chapter 5 (heading)
This item amends the heading of Chapter 5 to read 'Co-operation with
agencies'.
Item 6 - Section 194
Item 6 is a consequential amendment to repeal section 194 as a result of
Items 1, 2 and 3 that relocate the definitions of 'carrier', 'carriage
service provider' and 'nominated carriage service provider' to section 5 of
the TIA Act
Item 7 - Subsection 197(4)
Subsection 197(4) allows the Attorney-General to nominate a carriage
service provider to be a nominated carriage service provider for the
purposes of Part 5-4 of the TIA Act.
Item 7 amends subsection 197(4) to provide that a CSP that is nominated to
comply with Part 5-4 will also be required to comply with new Part 5-4A.
Item 8 - After Part 5-4A
Item 8 inserts new 'Part 5-4A - Requirement arising from proposed changes'.
New section 202A outlines the purpose of Part 5-4A, which is to require all
C/NCSPs to notify the CAC of changes that, if implemented, may impact on
the C/NCSP's ability to comply with their obligations under the TIA Act or
section 313 of the Telecommunications Act and to allow the CAC to notify
agencies of the proposed changes.
The TIA Act obliges all carriers and carriage service providers to have the
capability to intercept communications that are passing over their
telecommunications system and to deliver those communications to a specific
point. In addition, all C/NCSPs must annually submit an IC plan to the CAC
to confirm that they can comply with their statutory obligations to action
interception warrants.
Section 313 of the Telecommunications Act places more general obligations
on a C/CSP. For example, subsection 313(1) of the Telecommunications Act
requires the C/CSP to do the C/CSP's best to prevent their
telecommunications networks and facilities from being used in, or in
relation to, the commission of offences against the laws of the
Commonwealth or of the States and Territories. This includes the misuse of
data that is passing over their networks.
In addition, subsection 313(3) of the Telecommunications Act requires that
C/CSPs give such help as is reasonably necessary for the enforcement of the
criminal law, a law imposing a pecuniary penalty, the protection of the
public revenue and to safeguard national security. Subsection 313(7) gives
some specific examples of what this help would be, including providing
services in relation to actioning interception and stored communications
warrants.
After the CAC has been notified, the CAC may consult with various agencies
on the particulars of a change to an IC plan. The purpose of this
consultation is to identify changes which are potentially problematic for
ensuring the continuity of interception and delivery of communications, as
well as related issues. Early consultation facilitates cost effective
alterations to network design.
New section 202B of the TIA Act sets out the circumstances in which a
notification is required, as well as associated procedural elements.
New subsection 202B(1) of the TIA Act specifies that the section applies if
a C/NCSP becomes aware that the implementation of a proposed change is
likely to have a material adverse effect on the capacity of the C/NCSP to
comply with its obligations under either the TIA Act or section 313 of the
Telecommunications Act. This requirement is intended to apply during the
development process of a particular change as soon as potential impacts on
legal obligations become foreseeable.
New subsection 202B(2) of the TIA Act provides specific examples of changes
which may have a material adverse effect on the capacity of the C/NCSP to
comply with its obligations under either the TIA Act or section 313 of the
Telecommunications Act. These include, but are not limited to: outsourcing
arrangements, offshoring equipment or services, changes to services,
procuring new equipment, and changes to the management of services.
The concept of 'management' includes both technical management, such as
maintenance and support, as well as business management, such as the
collection, storage and administration of customer information, personal
details and other management ancillary to the service itself.
The phrase 'material adverse effect' intends to include anything which
could have an actual or measurable negative impact on the ability to comply
with the specific legal obligations.
New subsections 202B(3) and (4) specify that the C/NCSP must notify the CAC
of its intention to implement a change in writing and provide sufficient
details of the specifics of the change to allow the CAC and agencies to
analyse the potential impact, as well as any potential impacts which the
C/NCSP has foreseen.
New subsection 202B(5) allows a C/NCSP to proceed with a proposed change if
the C/NCSP has notified the CAC of the proposed change and has not received
a response from the CAC within 30 days of notification. In practice, the
30 days will commence when the CAC has acknowledged receipt of the
notification to the C/NCSP. This provision intends to provide certainty to
C/NCSPs so that they can proceed without indefinitely waiting for a
response by the CAC.
New subsection 202B(6) provides that, where the CAC notifies a C/NCSP
within 30 days of receipt of the notification that the proposed change is
of concern, the CAC has a further 30 days to specify a solution in relation
to specific obligations to deliver intercepted information, in line with
the current Determination making power under section 203 of the TIA Act.
The proposed change cannot be implemented within this subsequent 30 day
period, unless the CAC has made a Determination. However, if the CAC
notifies a C/NCSP of a possible issue and, within that 30 day period, a
solution is put in place which satisfies both the C/NCSP and the CAC, the
change can be implemented before the 30 day period has elapsed.
New subsection 202B(7) clarifies that the CAC may make a Determination
under section 203 of the TIA Act subsequent to the 30 day period in new
paragraph 202B(6)(b).
New section 202C allows the CAC to engage in consultations with agencies
after receiving notification from a C/NCSP of an intention to implement a
proposed change under new section 202B. The CAC, and any agency consulted
about the change, is required to keep the information regarding the
proposed change confidential. The requirement of confidentiality intends to
allow circulation of information regarding change within, but not beyond,
the Commonwealth Government, interception agencies and enforcement
agencies. The provision recognises the key role that consultation plays
between the CAC and the interception agencies on whose behalf the CAC makes
decisions.
Item 9 - Application of this Schedule
Item 9 clarifies that Part 5-4A applies only to changes proposed after this
Schedule commences. Changes proposed prior to the commencement of this
provision, but not yet implemented, will be bound by the provisions of
section 201 which require updated business plans to be reported.
Schedule 3 - Disclosure of telecommunications data relating to missing
persons
Telecommunications (Interception and Access) Act 1979
Currently, sections 276, 277 and 278 of the Telecommunications Act 1997
(the Telecommunications Act) make it an offence for specified classes of
persons, including employees of carriers, to disclose information which
comes into existence as a consequence of the business activities undertaken
by that carrier. These provisions are designed to protect the privacy of
telecommunications users.
Part 4-1 of the Telecommunications (Interception and Access) Act 1979 (the
TIA Act) provides exceptions to these offences. These exceptions relate to
authorisations for access to telecommunications data made by senior
officers of enforcement and security agencies where the officer is
satisfied that the specified information subject to the authorisation is
reasonably necessary for the purposes of security, the enforcement of the
criminal law, the enforcement of a law imposing a pecuniary penalty or for
the protection of the public revenue.
Part 4-1 of the TIA Act does not currently provide for circumstances where
police are performing functions in relation to protecting public safety
short of investigating unlawful conduct. Most notably, police are unable
to rely on Part 4-1 in assisting to locate a missing person.
Telecommunications data can assist Police Forces when trying to locate a
missing person, as information such as call records and location
information provide patterns about a person's movements as well as signs of
life.
This Schedule will amend Part 4-1 of the TIA Act so that an authorised
officer of a Police Force can authorise the disclosure of
telecommunications data when the disclosure is relevant to the location of
a person who is the subject of a missing person's report.
Noting that the function of locating a missing person relates to public
safety rather than investigating criminal activity, the new provisions
relating to the use of information obtained to locate a missing person will
be more stringent than the provisions relating to the use of information
obtained to investigate criminal conduct.
In addition, it needs to be understood that not all missing persons
necessarily want their location divulged. Therefore, the Bill contains
provisions that limit the authority of the Police Force to disclose
telecommunications data obtained for this purpose to the person making the
missing person's report.
Items 1 and 2 - Subsection 5(1) (definition of missing person information
and non-missing person information)
Items 1 and 2 insert definitions of 'missing person information' and 'non-
missing person information'. These definitions will be located in new
subsection 182(5). Missing person information is information obtained by
way of an authorisation under new section 178A, which allows an authorising
officer of the Australian Federal Police or a Police Force of a State to
authorise a carrier to disclose information if it is relevant to locating a
missing person.
Non-missing person information is information obtained under another
authorising provision of Part 4-1.
These definitions will be utilised in the specific secondary use and
disclosure provisions for information obtained to locate a missing person.
Item 3 - After section 178
Item 3 inserts new section 178A into Part 4-1 of the TIA Act to provide for
an authorising officer of the Australian Federal Police or a Police Force
of a State to authorise a disclosure of telecommunications data that would
otherwise be prohibited by sections 276, 277 and 278 of the
Telecommunications Act.
The authorisation may authorise the disclosure of information or documents
that came into existence prior to the receipt of the authorisation by the
carrier from whom the disclosure is sought.
The authorisation can be made when the authorising officer is satisfied
that the disclosure is reasonably necessary for the purposes of finding a
person who the Australian Federal Police, or a Police Force of a State, has
been notified is missing.
Items 4 and 6 - Subsections 182(2) and (3)
Item 4 makes consequential amendments to subsections 182(2) and (6) as a
result of Item 3 to replace the phrase 'information or a document' with the
new defined phrase 'non-missing person information'. This amendment
isolates missing person information from the application of the current
disclosure provisions in Chapter 4.
Item 5 - After subsection 182(2)
Item 5 inserts new subsection 182(2A) to regulate the secondary disclosure
of telecommunications data obtained pursuant to new section 178A, which is
defined as 'missing person information'
New subsection 182(2A) aims to be more limited than existing subsection
182(2) to reflect the fact that information obtained under section 178A is
for the purposes of public safety and should not be disclosed to obtain
evidence for criminal investigations.
New paragraph 182(2A)(a) provides that the disclosure of missing person
information is permitted for the purpose for which the initial disclosure
was authorised - that is where the disclosure is reasonably necessary for
the purposes of finding a person who the Australian Federal Police, or a
Police Force of a State, has been notified is missing.
New Paragraph 182(2A)(b) sets out the circumstances when missing person
information can be disclosed to the person who made the missing person's
report.
New subparagraph 182(2A)(b)(i) provides that missing person information is
permitted to be disclosed to the person who made the missing person report
if the missing person consents to the disclosure. This is envisaged to
allow persons who want certain friends or family informed that they are no
longer missing to allow the Police Force to inform them. Alternatively, if
the person does not consent to disclosure because they left their
environment wilfully, the person can be protected from the factors which
caused them to leave.
New subparagraph 182(2A)(b)(ii) provides that the Australian Federal Police
or a Police Force of a State may disclose missing person information to the
person who made the missing person's report to prevent a threat to the
missing person's health, life or safety if the person is unable to consent.
This provision intends to apply where the missing person is unable to
consent for any reason, including being a child, suffering a relevant
mental disability or being in a coma.
Subparagraph 182(2A)(b)(iii) provides that the Australian Federal Police or
a Police Force of a State may disclose missing person information to the
person who made the missing person report if the missing person is
deceased.
Item 7 - At the end of section 182
Item 7 inserts new subsection 182(4) to limit the use of missing person
information by the Australian Federal Police or a Police Force of a State
which is trying to locate a missing person. The relevant Police Force can
only use missing person information for the purpose of locating a missing
person.
Item 7 also inserts new subsection 182(5) which provides the definitions of
'missing person information' and 'non-missing person information'.
Item 8 - After paragraph 186(1)(a)
The TIA Act currently requires enforcement agencies to report on the number
of authorisations made by their agency under the different authorisations
categories under Chapter 4 of the TIA Act.
Item 8 inserts paragraph 186(1)(a) to require enforcement agencies to
report annually on the number of authorisations made in relation to missing
person information under new section 178A.
Item 9 - Application of this Schedule
Item 9 sets out the application of the new provisions. The powers in
relation to accessing telecommunications data for the purposes of finding
missing persons are available for data that came into existence prior to
this Schedule commencing and to locate people who went missing prior to
this Schedule commencing.
Schedule 4 - Stored communications warrants in relation to victims of
serious contraventions
Telecommunications (Interception and Access) Act 1979
Schedule 4 amends Chapter 3 of the Telecommunications (Interception and
Access) Act 1979 (TIA Act) to enable enforcement agencies to apply for a
stored communications warrant to access the stored communications of a
victim of a serious contravention without that person's consent.
Accessing a stored communication does not involve intercepting a
communication as it occurs. Rather, a stored communication is defined in
the TIA Act as being a communication that is not passing over a
telecommunications system, is held on a carrier's network and can only be
accessed with the assistance of a carrier. Enforcement agencies can
already access such communications where the victim can be notified that
their stored communications will be obtained in order to investigate the
contravention. However, the victim may not always be available because,
for example, they are missing, incapacitated or deceased. In these
circumstances enforcement agencies cannot access stored communications to
gather information that could help locate the victim or prosecute the
offender.
Stored communications can be obtained without consent under a stored
communications warrant but only where an enforcement agency is
investigating a 'serious contravention in which the person is involved'
(see section 116 of the TIA Act). A 'serious contravention' is defined in
section 5E of the TIA Act. It includes a contravention that is a serious
offence or an offence punishable by imprisonment for a period of at least 3
years, or where the offence is committed by an individual, a fine of at
least 180 penalty units, or at least 900 penalty units where the offence
cannot be committed by an individual. While these requirements clearly
apply to perpetrators and persons suspected of committing a serious
contravention, it is unclear whether they also apply to the victim of a
serious contravention.
The amendments contained in this Bill will remove any ambiguity, clarifying
that a stored communications warrant can be obtained to access the stored
communications of both the offender and the victim of a serious
contravention.
Item 1 - Paragraph 116(1)(d)
Item 1 amends the test an enforcement agency must satisfy when applying for
a stored communications warrant to include the victim of a serious
contravention. Currently, paragraph 116(1)(d) states that the issuing
authority must be satisfied that the information that would be accessed by
exercising the authority of the warrant would be likely to assist in
connection with the investigation by the agency of a serious contravention
'in which the person is involved.'
Item 1 will insert after the phrase 'in which the person is involved' the
phrase 'including as a victim of the serious contravention'. This
amendment will allow an enforcement agency to obtain a stored
communications warrant if, when satisfying the other limbs of the test set
out in section 116, accessing the stored communications of the victim of
the serious contravention would assist the investigation of the
contravention.
Item 2 - After paragraph 116(1)(d)
Item 2 clarifies that covert access to communications is limited to
circumstances where the victim cannot consent or where it is impracticable
for the victim to consent.
Item 2 inserts a further test to section 116 in relation to applications
for a stored communications warrant to access the stored communications of
victims of serious contraventions. The new paragraph requires the issuing
authority to be satisfied that the victim cannot consent, or that it is
impracticable for the victim to consent, to the stored communications being
accessed.
Item 3 - Paragraph 116(1)(e)
Item 3 is a consequential amendment to paragraph 116(1)(e) as a result of
Item 2 and reflects current drafting practices.
Item 4 - Application of this Schedule
Item 4 is an application provision. It clarifies that an enforcement
agency can apply for a stored communications warrant in relation to the
victim of a serious contravention whether the information to be accessed
was first held on a carrier's network before or after the schedule
commenced and whether the conduct being investigated was committed before
or after the schedule commenced. Schedule 4 does not retrospectively
criminalise any activity.
Schedule 5 - Notifying Managing Directors of warrants
Telecommunications (Interception and Access) Act 1979
Under section 47 of the TIA Act, interception under a warrant is only
authorised where the Managing Director of the carrier has been notified of
the warrant in accordance with subsection 60(1) of the TIA Act and the
interception is undertaken by an employee of the carrier.
Subsection 60(1) requires that the 'certifying officer' of the agency to
whom an interception warrant has been issued must inform the Managing
Director of the carrier that the warrant has been issued. Section 15
places a similar obligation on the Director-General of Security when the
Organisation intercepts communications with the assistance of a carrier.
Currently, the Managing Director of a carrier cannot nominate anyone else
within the carrier to receive the notification, meaning that a warrant
cannot be executed if the Managing Director is not readily available. The
Bill amends several notification provisions in the TIA Act to allow
notifications to be made to a carrier representative authorised by the
Managing Director so as to ensure investigations are not stymied by the
unavailability of a carrier's Managing Director.
Item 1 - Subsection 5(1) (definition of authorised representative)
Item 1 inserts a new definition of 'authorised representative' into
subsection 5(1) of the TIA Act. An authorised representative is the
Managing Director or Secretary of the carrier or an employee of the carrier
who has been authorised in writing by the Managing Director. An authorised
representative will be able to be notified about the issue of and the
revocation of telecommunications interception and stored communications
warrants.
Items 2 to 9 - Section 15
Items 2 to 9 replace the references to 'Managing Director' in section 15 of
the TIA Act with the term 'authorised representative'. Section 15 sets out
the notification requirements that the Organisation must satisfy once an
interception warrant requiring action by a carrier has been issued to the
Organisation.
The provisions mean that the authorised representative who is notified of
the issue of a warrant under subsection 15(1) will also be required to
receive the subsequent notification about the revocation of the warrant in
order for the Organisation to comply with section 15.
Items 10 to 15 - Section 16
Items 10 to15 replace the references to 'Managing Director' in section 16
of the TIA Act with the term 'authorised representative'. Section 16 sets
out the additional requirements that apply when the Organisation has been
issued a named person warrant.
The provisions mean that the authorised representative who is notified of
the issue of a warrant under subsection 16(1) will also be required to
receive the subsequent notification about the revocation of the warrant in
order for the Organisation to comply with section 16.
Item 16 - Paragraph 47(a)
Item 16 amends paragraph 47(a) of the TIA Act. Section 47 of the TIA Act
limits the authority of an interception warrant issued to an interception
agency (other than the Organisation) insofar as the interception can only
take place after the Managing Director has been notified of the issue of an
interception warrant under Part 2-5 of the TIA Act and the interception
takes place as a result of actions by the employee of a carrier.
Similar to items 2 to 9, Item 16 replaces the reference to the term
'Managing Director' in subsection 47(a) with the term 'authorised
representative'.
Items 17 to 26 - Section 60
Items 17 to 26 amend section 60 of the TIA Act. Section 60 imposes the
requirements upon interception agencies (other than the Organisation) to
notify the Managing Director of a carrier in relation to the issue and
revocation of interception warrants. The amendments replace the term
'Managing Director' with the term 'authorised representative'.
The provisions mean that the authorised representative who is notified of
the issue of a warrant under subsection 60(1) will also be required to
receive the subsequent notification about the revocation of the warrant in
order for the agency to comply with the requirements of section 60.
Items 27 and 28 - Section 121
Items 27 and 28 amend section 121 of the TIA Act. Section 121 sets out the
notification requirements when a stored communications warrant has been
issued to an enforcement agency. The Managing Director must be notified of
the issue of the warrant and be given a certified copy of the warrant.
Items 27 and 28 will amend these provisions so that an authorised
representative of the carrier can be notified in accordance with section
121.
Items 29 to 31 - Section 123
Items 29 to 31 amend section 123 of the TIA Act, which sets out the
notification requirements for the revocation of a stored communications
warrant. Items 29 to 31 will replace the references to the term 'Managing
Director' in section 123 with the term 'authorised representative'.
The provisions mean that the authorised representative who is notified of
the issue of a warrant under section 121 will also be required to receive
notification about the revocation of the warrant under section 123.
Items 32 to 35 - Section 124
Stored communications warrants are issued in relation to a particular
person rather than a particular service. During the course of an
investigation agencies may become aware that the person who is the subject
of the warrant is using additional services. Section 124 of the TIA Act
allows agencies to add these services to the warrant by providing the
Managing Director of the carrier with a written description of the service.
Items 32 to 35 replace the reference to the term 'Managing Director' with
the term 'authorised representative' so that an authorised representative
can be notified in accordance with section 124.
Item 36 - Section 126
Item 36 amends section 126 of the TIA Act. Section 126 applies to stored
communications warrants in the same way that section 47 applies to
interception warrants in that the authority of a stored communications
warrant cannot be exercised until the Manager Director of the carrier has
been notified of the issue of the warrant.
Item 36 replaces the term 'Managing Director' with the term 'authorised
representative' so that an authorised representative can be notified in
accordance with section 126.
Item 38 - Application of Schedule
Item 38 means that this schedule will apply to any warrant that has been
issued before or after the Schedule commences, where a notification
referred to in one of the amended provisions has not been made.
Schedule 6 - Cooperation and assistance function for intelligence agencies
Australian Security Intelligence Organisation Act 1979
Intelligence Services Act 2001
Telecommunications (Interception and Access) Act 1979
Schedule 6 will amend the Australian Security Intelligence Organisation Act
1979 (ASIO Act) and the Intelligence Services Act 2001 (IS Act) to enable
greater cooperation and assistance and information sharing among
Australia's national security community.
The amendments relating to cooperation will enable the Australian Security
Intelligence Organisation (ASIO), the Australian Secret Intelligence
Service (ASIS), the Defence Signals Directorate (DSD) and the Defence
Imagery and Geospatial Organisation (DIGO) to cooperate more closely and to
assist one another in the performance of one another's functions. It will
also enable ASIO to cooperate and assist law enforcement agencies,
particularly in areas such as telecommunications interception and technical
and other support. It will also be possible to prescribe other agencies by
Regulation for the purpose of enabling ASIO, ASIS, DSD and DIGO to
cooperate with and assist those other Australian Government bodies in the
future, should this be considered desirable.
Schedule 6 also provides for amendments to the communication provisions in
the ASIO Act. These amendments remove barriers and enhance intelligence
sharing among the national security community, which will support ASIO's
capacity to cooperate with and assist other national security agencies.
Australian Security Intelligence Organisation Act 1979
Item 1 - Section 4 (definition of ASIS)
Item 1 will insert a new definition of 'ASIS'. ASIS will have the meaning
given by the IS Act, which means the Australian Secret Intelligence
Service.
Item 2 - Section 4 (definition of authority of the Commonwealth)
Item 2 inserts new paragraph (aa) in the existing definition of 'authority
of the Commonwealth' to provide that 'authority of the Commonwealth'
includes a Department within the meaning of the Parliamentary Service Act
1999. The inclusion of paragraph (aa) will ensure that the definition of
'authority of the Commonwealth' in the ASIO Act is consistent with the
definition of 'Commonwealth authority' in the IS Act.
Item 3 - Section 4 (definition of authority of the Commonwealth)
Item 3 repeals the current paragraph (f) of the definition of 'authority of
the Commonwealth' and replaces it with a new paragraph (f) that better
reflects modern corporation arrangements. The current definition of
'authority of the Commonwealth' includes 'a company the whole of the share
capital of which is held by the Commonwealth.' This will be replaced by a
reference to 'a body corporate in which the Commonwealth or a body referred
to in paragraph (c) [of the definition of authority of the Commonwealth]
has a controlling interest.' This change is consistent with the definition
of 'Commonwealth authority' in the IS Act.
Item 4 - Section 4 (definition of authority of a State)
Item 4 inserts a definition of 'authority of a State' in section 4. This
proposed new definition is modelled on the definition of 'State authority'
in section 3 of the IS Act. It includes State Departments, bodies
established for a public purpose by a law of a State, and bodies corporate
in which a State or a body established for a public purpose by a law of a
State has a controlling interest.
This proposed new definition in section 4 also notes that the existing
definition of 'authority of a State' in subsection 35(1) for the purposes
of Part IV of the ASIO Act is not affected in so far as it relates to that
Part.
Item 5 - Section 4 (definition of DIGO)
Item 5 will insert a new definition of 'DIGO'. 'DIGO' will have the
meaning given by the IS Act, which means that part of the Department of
Defence known as the Defence Imagery and Geospatial Organisation.
Item 6 - Section 4 (definition of DSD)
Item 6 will insert a new definition of 'DSD'. 'DSD' will have the meaning
given by the IS Act, which means that part of the Department of Defence
known as the Defence Signals Directorate.
Item 7 - Section 4 (definition of law enforcement agency)
Item 7 will insert a definition of 'law enforcement agency'. 'Law
enforcement agency' will mean an authority of the Commonwealth, or an
authority of a State, that has functions relating to law enforcement.
This definition is necessary for proposed section 19A (inserted by item
17), which will enable ASIO to co-operate with and provide assistance to
law enforcement agencies.
The definition of 'law enforcement agency' is intended to cover a broad
range of agencies that have functions that are related to law enforcement.
This is not limited to Police services, but also encompasses other bodies
that have functions connected with law enforcement, such as integrity and
corruption agencies and also other agencies with investigatory and
enforcement powers with respect to Commonwealth and State laws.
Item 8 - Section 4 (definition of serious crime)
Item 8 will insert a definition of 'serious crime' for the purposes of
subsection 18(3) (amended by item 12). The term serious crime will replace
the term 'indictable offence' in current subsection 18(3), as the term
'indictable offence' can have slightly different meanings in different
jurisdictions. The definition of 'serious crime' is consistent with the
definition of 'serious crime' in section 3 of the IS Act, meaning an
offence punishable by a period of imprisonment that exceeds 12 months.
Item 9 - Section 4 (definition of staff member)
Item 9 will insert a definition of 'staff member'. The item provides that
the term 'staff member' of a body (however described) includes the head of
the body, or another person who holds an office or appointment in relation
to the body, and a person who is otherwise a member of staff, an employee,
consultant or contractor of the body.
The definition of staff member of a body is intended to include staff of a
broad range of bodies, including agencies, Departments, Police and
statutory office holders. It is intended to capture persons employed by or
who work in or for those bodies, regardless of the way such employment or
engagement is defined or described in other contexts or other legislation.
Item 10 - Paragraph 17(1)(b)
Section 17 of the ASIO Act sets out ASIO's functions, which include, under
paragraph 17(1)(b), the communication of information relevant to security
'for purposes relevant to security and not otherwise'.
Item 10 removes the phrase 'and not otherwise' from paragraph 17(1)(b).
Removal of these words will ensure there is no conflict of laws in the
event that another provision authorises ASIO to communicate security
intelligence for a non-security related purpose and does not specifically
state that it overrides the requirement in paragraph 17(1)(b).
Item 11 - At the end of subsection 17(1)
Item 11 will amend subsection 17(1) to provide ASIO with a specific
function to enable it to co-operate with or assist bodies referred to in,
and in accordance with, proposed section 19A (inserted by item 17). This
new function should be read in conjunction with proposed section 19A. This
provision is not intended to limit ASIO's current capacity to co-operate
with other bodies in the course of performing ASIO's existing functions.
The new function will ensure that ASIO is also able to co-operate with and
assist other agencies in the performance of the other agencies' functions.
Item 12 - Subsection 18(3)
Item 12 repeals subsection 18(3) and replaces it with a new provision.
This proposed new subsection 18(3) will provide that the Director-General
or a person acting within the limits of authority conferred on the person
by the Director-General, may communicate information that has come into the
possession of ASIO in the course of performing its functions, to specified
persons in specified circumstances. The circumstances where information
may be communicated are where:
. the information relates, or appears to relate, to the commission, or
intended commission, of a serious crime; or
. the Director-General, or a person authorised for the purpose by the
Director-General, is satisfied that the national interest requires the
communication.
The information may be communicated to an appropriate Minister, authority
of the Commonwealth or an authority of a State. Such a person will be
appropriate in the circumstances if the information is communicated for one
of the above purposes, and the information relates, or appears to relate,
to the functions, responsibilities or duties of the person to whom it is
communicated.
These provisions are similar to the current paragraphs 18(3)(a) and (b) of
the ASIO Act. Currently, ASIO may communicate information about an
indictable offence to specified law enforcement agencies. ASIO may also
communicate information where the Director-General is satisfied that the
national interest requires it, to a range of specified persons and bodies,
but only where the information has come into ASIO's possession outside
Australia or concerns matters outside Australia.
The proposed new subsection 18(3) will enable information to be
communicated for the above specified purposes to those persons identified
in subsection 18(4) (a Minister, staff member of an authority of the
Commonwealth or staff member of an authority of a State), where the
information relates, or appears to relate, to the performance of the
functions, responsibilities or duties of the person. This approach is
intended to provide flexibility to ensure that ASIO is able to provide
information to the most appropriate person or body, having regard to their
functions. This will also ensure that where new agencies or bodies are
created or existing agencies are conferred with new functions, ASIO's
ability to communicate with them is not restricted by having a narrow list
of agencies and bodies with whom it may communicate.
The proposed new subsection 18(3) will remove the limitation in current
paragraph 18(3)(b), which only applies to information obtained outside
Australia or concerning matters outside Australia. Such a distinction
could prevent the communication of all relevant material concerning a
particular matter. This is unduly restrictive in light of increased cross-
border activities of relevance to Australia's national interests. The
proposed new provision will ensure that where ASIO holds information, and
the Director-General or person authorised for that purpose is satisfied
that the national interest requires the information to be communicated,
that ASIO may communicate all relevant information to the appropriate
person or body.
This item also inserts a note at the end of subsection 18(3) to advise
readers of the legislative restrictions on the communication of certain
information contained in the Telecommunications (Interception and Access)
Act 1979.
Proposed subsection 18(4)
Proposed new subsection 18(4) sets out the persons and bodies to whom
information may be communicated under subsection 18(3). This is, a
Minister, a staff member of an authority of the Commonwealth or a staff
member of an authority of a State. While this is a broad category of
persons, it is limited by the fact that proposed subsection 18(3) only
authorises information to be communicated for specified purposes, and the
information must be relevant to the functions, responsibilities or duties
of the person. For example, where ASIO obtains information relating to the
commission of a serious crime, this information may be communicated to the
body that would have responsibility for investigating that crime.
Proposed subsection 18(4A)
New subsection 18(4A) provides that the Director-General or a person acting
within the limits of authority conferred on the person by the Director-
General may communicate information that has come into the possession of
ASIO in the course of performing its functions to a staff member of ASIS,
DSD or DIGO if the information relates, or appears to relate, to the
performance of ASIS, DSD or DIGO's functions.
This amendment will ensure that ASIO is able to provide information to the
other intelligence agencies where the information is, or appears to be,
relevant to their functions. It will also ensure that ASIO is able to
provide information to ASIS, DSD and DIGO where ASIO is cooperating with or
providing assistance to those agencies under proposed new subsection 19A,
though it is not restricted to circumstances where ASIO is cooperating with
those agencies.
Proposed subsection 18(4B)
Proposed new subsection 18(4B) provides for the communication of
information in accordance with an emergency declaration under Part VIA of
the Privacy Act 1988. Proposed new subsection 18(4B) is intended to
replicate the current provision in subsection 18(3)(c). The changes made
by new subsection 18(4B) are intended to update the drafting style for
consistency with other provisions amended in this Bill and are not intended
to change the operation or meaning of this provision.
Item 13 - Subsection 18(6)
Item 13 repeals subsection 18(6) which provided definitions of 'Integrity
Commissioner', 'member of the staff of the ACC', 'special investigator' and
'staff member of ACLEI'. These definitions existed in subsection 18(6) for
the purposes of subparagraph 18(3)(b). As subparagraph 18(3)(b) will be
repealed and replaced by new subsections 18(3) and 18(4), these definitions
are no longer required.
Item 14 - Subsection 19(1)
Section 19 of the ASIO Act provides that ASIO may co-operate with certain
authorities so far as necessary for, or conducive to, the performance of
ASIO's functions. Item 14 will replace the reference in this section from
'its' to 'the Organisation's' functions, to make it clear that the co-
operation under subsection 19(1) must relate only to the performance of
ASIO's functions, and not those of the authorities ASIO is co-operating
with.
Item 15 - Subsection 19(2)
Item 15 omits the words 'Notwithstanding paragraph 17(1)(b)' from the
beginning of subsection 19(2). These words are no longer required as a
result of the redrafting of paragraph 17(1)(b) and the omission in that
paragraph of the words 'and not otherwise' as outlined in item 10. The
repeal of these words from subsection 19(2) does not change the meaning or
operation of that subsection.
Item 16 - Subsection 19(2)
Item 16 inserts a new note at the end of subsection 19(2) to advise readers
of the legislative restrictions on the communication of certain information
contained in the Telecommunications (Interception and Access) Act 1979.
Item 17 - After section 19
Item 17 will insert a new section 19A into the ASIO Act to enable ASIO to
co-operate with and assist ASIS, DSD, DIGO, a law enforcement agency, and
prescribed Commonwealth and State authorities, in the performance of their
functions.
ASIO's co-operation with and assistance to other agencies will be subject
to any arrangements made or directions that may be given by the Minister
responsible for ASIO. This will ensure that the Minister has appropriate
oversight of co-operation and assistance arrangements and is able to issue
directions or make arrangements as the Minister considers appropriate. The
Minister is not required to make arrangements or give directions, but if
any arrangements or directions are given, ASIO must comply with them.
ASIO will only be able to co-operate with and assist other agencies under
this section at the request of the head of that other agency. This will
ensure that ASIO cannot utilise its functions to co-operate with and assist
another agency of its own volition, and can only do so when requested by
and agreed with the requesting agency. The decision to provide co-
operation or assistance will be a discretionary matter for ASIO. Agency
heads may make arrangements concerning the details and/or restrictions on
particular instances of cooperation or assistance.
Co-operation and assistance is intended to cover a range of scenarios and
may include, for example, the provision of:
. ASIO staff and resources to multi-agency teams and taskforces;
. ASIO staff or other resources to assist another agency carry out its
functions;
. linguistic, analytical and other technical services;
. logistical support; and
. any other resources that ASIO wishes to make available to the
particular body in accordance with the requirements of the proposed
section.
In carrying out the proposed new function of co-operating with and
assisting other agencies, ASIO must still adhere to the requirements of the
ASIO Act. For example, ASIO will be required to comply with requirements
to obtain a warrant if ASIO were to undertake intelligence collection
activities to assist another agency perform its functions in a way that
would currently require ASIO to obtain a warrant.
Intelligence Services Act 2001
Item 18 - Section 3 (definition of incidentally obtained intelligence)
Item 18 excludes information obtained solely under proposed paragraph
6(1)(da) from the definition of 'incidentally obtained intelligence'. As
this definition refers to subsection 6(1) in its entirety, it is necessary
to specifically carve out the proposed new paragraph to ensure that
information obtained by ASIS solely for the purpose of cooperating with or
providing assistance to another agency is not captured by this definition.
This is consistent with the current exclusion of DIGO's existing assistance
functions under paragraph 6B(e) and DSD's existing assistance functions
under paragraphs 7(c), (d) and (e) from the definition of 'incidentally
obtained intelligence'. DIGO and DSD's proposed new cooperation and
assistance functions under proposed paragraphs 6B(f) and 7(f) do not need
to be specifically excluded as they will not be captured by the definition.
Information that is covered by the definition of 'incidentally obtained
intelligence' would need to be communicated in accordance with
subsection 11(2AA) and in accordance with Privacy Rules made under section
15. It is necessary to exclude information obtained solely for the purpose
of assisting another agency under proposed section 13A to ensure that other
provisions of the IS Act do not lead to a situation where information could
be collected for the sole purpose of assisting another agency but may not
be able to be communicated to that agency.
Item 19 - Section 3 (definition of intelligence information)
Item 19 excludes information obtained solely under proposed paragraph
6(1)(da) from the definition of 'intelligence information'. As this
definition refers to subsection 6(1) in its entirety, it is necessary to
specifically carve out the proposed new paragraph to ensure that
information obtained by ASIS solely for the purpose of cooperating with or
providing assistance to another agency is not captured by this definition.
This is consistent with the current exclusion of DIGO's existing assistance
functions under paragraph 6B(e) and DSD's existing assistance functions
under paragraphs 7(c), (d) and (e) from the definition of 'intelligence
information'. DIGO and DSD's proposed new cooperation and assistance
functions under proposed paragraphs 6B(f) and 7(f) do not need to be
specifically excluded as they will not be captured by the definition.
Information that is covered by the definition of 'intelligence information'
would need to be communicated in accordance with Privacy Rules made under
section 15. It is necessary to exclude information obtained solely for the
purpose of assisting another agency under proposed section 13A to ensure
that other provisions of the IS Act do not lead to a situation where
information could be collected for the sole purpose of assisting another
agency but may not be able to be communicated to that agency.
Item 20 - After paragraph 6(1)(d)
Item 20 will amend subsection 6(1) to provide ASIS with a specific function
to enable it to co-operate with and assist bodies referred to in, and in
accordance with, proposed section 13A (inserted by item 27). This new
function should be read in conjunction with proposed section 13A. This
provision is not intended to limit ASIS's current capacity to co-operate
with and assist other bodies in the course of performing ASIS's existing
functions. The new function will ensure that ASIS is also able to co-
operate and assist other agencies in the performance of the other agencies'
functions.
Item 21 - At the end of section 6B
Item 21 will amend section 6B to provide DIGO with a specific function to
enable it to co-operate with and assist bodies referred to in, and in
accordance with, proposed section 13A (inserted by item 27). This new
function should be read in conjunction with proposed section 13A. This
provision is not intended to limit DIGO's current capacity to co-operate
with and assist other bodies in the course of performing DIGO's existing
functions. The new function will ensure that DIGO is also able to co-
operate and assist other agencies in the performance of the other agencies'
functions.
Item 22 - At the end of section 7
Item 22 will amend section 7 to provide DSD with a specific function to
enable it to co-operate with and assist bodies referred to in, and in
accordance with, proposed section 13A (inserted by item 27). This new
function should be read in conjunction with proposed section 13A. This
provision is not intended to limit DSD's current capacity to co-operate
with and assist other bodies in the course of performing DSD's existing
functions. The new function will ensure that DSD is also able to co-
operate and assist other agencies in the performance of the other agencies'
functions.
Items 23, 24 and 25 - Paragraphs 11(2)(d), 11(2)(e) and 11(2)(f)
Subsection 11(2) of the IS Act places limits on ASIS, DIGO or DSD's
(agencies) functions by specifying that these agencies' functions do not
include the carrying out of Police functions, or any other responsibility
for the enforcement of the law. Subsection 11(2) also specifies, for the
avoidance of doubt, that while the agencies are not to carry out Police
functions, they are able to co-operate and assist Police in accordance with
their functions. Consistent with the existing provisions, items 23, 24 and
25 will amend paragraphs 11(2)(d), 11(2)(e) and 11(2)(f) of the IS Act to
ensure that ASIS, DIGO and DSD are not prevented from performing their new
functions (inserted by items 20, 21 and 22) of co-operating with and
assisting bodies referred to in, and in accordance with, proposed section
13A (inserted by item 27).
Item 26 - Subsection 11(3)
Item 26 will provide that the limitations in subsection 11(1) of the IS Act
do not apply to the proposed new cooperation functions of the agencies
(inserted by items 20, 21 and 22).
Subsection 11(1) of the IS Act provides that the functions of the agencies
are only to be performed 'in the interests of Australia's national
security, Australia's foreign relations or Australia's national economic
well-being, and only to the extent that those matters are affected by the
capabilities, intentions or activities of people or organisations outside
Australia'. The proposed new cooperation and assistance functions are
intended to enable the agencies to assist other agencies in the performance
of the other agencies' functions, which may not be limited to the matters
specified in subsection 11(1). Therefore, this item will ensure that
agencies have sufficient flexibility to co-operate with and assist the
bodies referred to in proposed section 13A. This is consistent with the
current operation of subsection 11(3) of the IS Act, which provides that
subsection 11(1) of the IS Act does not apply to the other assistance
functions of DIGO and DSD.
Item 27 - After section 13
Item 27 will insert new section 13A into the IS Act to enable ASIS, DSD and
DIGO to co-operate with and assist each other, ASIO and other prescribed
Commonwealth and State authorities, in the performance of their functions.
Agencies' co-operation and assistance with other agencies will be subject
to any arrangements made or directions that may be given by the Minister
responsible for the agency. This will ensure that the Minister has
appropriate oversight of co-operation and assistance arrangements and is
able to issue directions or make arrangements to ensure that agencies' co-
operation and assistance is appropriate. The responsible Minister is not
required to make arrangements or give directions, but if any arrangements
or directions are given, the agency must comply with them.
A note clarifies that ministerial directions are subject to the
requirements of section 32B of the Inspector-General of Intelligence and
Security Act 1986, which requires that the Minister give a copy of a
direction to the Inspector-General of Intelligence and Security as soon as
practicable after the direction is given.
Agencies will only be able to co-operate with and assist another agency at
the request of the head of that agency. This will ensure that agencies
cannot utilise their functions to co-operate with and assist another agency
of their own volition, and can only do so when requested by and agreed with
the requesting agency. The decision to provide co-operation or assistance
will be a discretionary matter for the agency receiving a request for
assistance. Agency heads may make arrangements concerning the details
and/or restrictions on particular instances of cooperation or assistance.
. Co-operation and assistance is intended to cover a range of scenarios
and may include, for example, the provision of agency staff and
resources to multi-agency teams and taskforces;
. agency staff or other resources to assist another agency carry out its
functions;
. linguistic, analytical and other technical services;
. logistical support; and
. any other resources that ASIS, DSD or DIGO wishes to make available to
the particular body in accordance with the requirements of the proposed
section.
In carrying out the proposed new function of co-operating with and
assisting other agencies, ASIS, DSD and DIGO must still adhere to the
requirements of the IS Act. For example, ASIS, DSD and DIGO will retain
their obligation to obtain a Ministerial Authorisation under section 8 of
the IS Act when they undertake an activity for the purpose of collecting
new intelligence on an Australian person even if they are solely performing
the activity for the purpose of assisting another agency under proposed
section 13A.
Telecommunications (Interception and Access) Act 1979
Item 28 - Subsections 65(1) and 137(1)
Item 28 omits the reference to 'paragraph 18(3)(a) or (b)' and substitutes
this reference with 'subsection 18(3) or (4A) or subsection 19A(4)'. This
is a consequential amendment necessitated by the repeal of paragraphs
18(3)(a) and (b) and the substitution of those with provisions in
subsections 18(3), (4A) and subsection 19A(4).
Item 29 - Application of amendments relating to communication of
information
Item 29 provides that the amendments made by this Schedule relating to the
communication of information by ASIO apply in relation to any information,
whether the information comes into ASIO's possession before or after this
Schedule commences.
This provision ensures that these provisions apply to existing information
held by ASIO, and that ASIO is not restricted to communicating information
only obtained upon commencement of these provisions.
Schedule 7 - Amendments to section 5 of the Telecommunications
(Interception and Access) Act 1979
Telecommunications (Interception and Access) Act 1979
Schedule 5 amends several definitions contained in section 5 of the
Telecommunications (Interception and Access) Act 1979 (TIA Act) to
restructure the section in a more logical order and to correct minor
errors.
Items 1 and 7 - Subsection 5(1) (definition of Director-General of Security
and definition of the Director-General of Security)
Item 1 inserts a new definition of 'Director-General of Security' identical
to the existing definition of 'the Director-General of Security'. This
amendment means the definition will be easier to find as it will be located
alphabetically under 'D' rather than 'T' consistent with the ordering of
other definitions in the TIA Act.
Item 7 repeals the term 'the Director-General of Security'.
Item 2 - Subsection 5(1) (paragraph (b) of the definition of Enforcement
Agency)
Item 2 amends the definition of 'enforcement agency' in the TIA Act so that
it refers to 'a Police Force of a State' rather than 'a police force or
service of a State'. The latter definition was transferred from the
Telecommunications Act 1997 following the transfer of then section 282 of
the Telecommunications Act to the new provisions of Chapter 4 of the TIA
Act.
The amendment reflects the fact that the wording of the definition from the
Telecommunications Act is not consistent with other references to Police
Forces in the TIA Act. The amendment will ensure consistency across the TIA
Act and does not affect the authority of any warrants issued or
authorisations made under the TIA Act.
Items 3 and 4 - Subsection 5(1) (definition of member of the staff of the
Policy Integrity Commission)
Item 3 corrects a typographical error. Currently, the TIA Act defines the
term 'member of the staff of the Policy Integrity Commission rather than
the correct term 'member of the staff of the Police Integrity Commission'.
The incorrect reference to Policy Integrity Commission has had no impact on
the operation of the TIA Act, nor the legality of any action undertaken by
the Police Integrity Commission.
Item 4 repeals the incorrect term 'member of the staff of the Policy
Integrity Commission' which is replaced by item 3.
Item 5 - Subsection 5(1) (subparagraph (h)(iii) of the definition of
officer)
Item 5 corrects a consequential typographical error to the definition of
'officer' in the TIA Act which occurred as a result of the insertion of the
definition of 'member of staff of the Policy Integrity Commission'. It
replaces the word 'Policy' at subparagraph 5(1)(h)(ii) of the definition of
'officer' with the word 'Police'.
Items 6 and 8 - Subsection 5(1) (definition of Organisation and the
Organisation)
Item 6 inserts a new definition of 'Organisation'. Currently section 5
includes a definition of 'the Organisation', meaning the definition is
located alphabetically under 'T'. This amendment means that the definition
will be more logically located under 'O'.
Item 8 repeals the definition of the 'the Organisation' consequential to
item 6.