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2019-2020-2021
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
TELECOMMUNICATIONS LEGISLATION AMENDMENT (INTERNATIONAL
PRODUCTION ORDERS) BILL 2020
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments and New Clauses to be Moved on Behalf of the Government
(Circulated by authority of the Minister for Home Affairs, the Hon Karen Andrews MP)
TELECOMMUNICATIONS LEGISLATION AMENDMENT (INTERNATIONAL
PRODUCTION ORDERS) BILL 2020
GENERAL OUTLINE
1. The Telecommunications Legislation Amendment (International Production Orders)
Bill 2020 (the Bill) will amend the Telecommunications (Interception and Access) Act 1979
(TIA Act) to establish a new framework for international crime cooperation cross-border
access to data agreements to assist Australian law enforcement and national security
agencies' access to overseas communications data for law enforcement and national security
purposes.
2. The amendments to the Bill address a number of recommendations made by the
Parliamentary Joint Committee on Intelligence and Security in its Advisory Report on the
Telecommunications Legislation Amendment (International Production Orders) Bill 2020.
These amendments to the Bill:
Parliamentary scrutiny and requirements for designated international agreements for the
purposes of Schedule 1
Provide that the text of an agreement and the text of any amendments to a designated
international agreement must be set out in the regulations (recommendations 2 and 3).
Provide that regulations made under clause 3 cannot commence until after the expiry
of the period for parliamentary disallowance in the Legislation Act 2003
(recommendation 2).
Clarify that a designated international agreement is a treaty subject to Australia's
treaty making process, and nothing in Schedule 1 to the TIA Act modifies or limits
the application of the treaty making process to a designated international agreement,
including a proposed amendment to, or extension to the duration of, a designated
international agreement (recommendation 3).
Provide that the text of an agreement cannot be set out in the regulations unless the
Attorney-General, after consulting the Minister for Home Affairs and Minister for
Foreign Affairs, is satisfied that the agreement and the foreign country parties to the
agreement meet specified requirements, and the Attorney-General has issued a written
certificate and provided a copy to the Chair of JSCOT (recommendations 4-8).
Require that the PJCIS undertake a legislative review into the operation, effectiveness
and implications of the proposed Schedule 1 of the TIA Act (recommendation 23).
Applications for international production orders
Introduce a definition of urgent circumstances for the purposes of the proposed
Schedule 1 of the TIA Act (recommendation 10).
Provide that, at the time when the Australian Security Intelligence Organisation
(ASIO) seeks the Attorney-General's oral consent to make an application for an
international production order (IPO), ASIO must inform the Attorney-General of the
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particulars of the urgent circumstances that necessitate the consent to be given orally
(recommendation 15).
Ensure that only the Director-General of Security, a Deputy Director-General of
Security, or senior position-holders within ASIO (authorised by the Director-General
of Security) may make an application for an interception or stored communications
international production order on behalf of ASIO (recommendations 12 and 13).
Ensure that only the Director-General of Security, a Deputy Director-General of
Security, or persons holding a position within ASIO that is equivalent to or higher
than a position occupied by an Executive Level 2 APS employee (authorised by the
Director-General) may make an application for a telecommunications data
international production order on behalf of ASIO (recommendation 14).
Oversight and record-keeping
Provide that an Inspector-General of Intelligence and Security (IGIS) official may
access the register of IPOs (recommendation 18).
Ensure that protected information can be used, record and disclosed for the purposes
of any functions or duties, or the exercise of any powers, available to IGIS and Office
of the Commonwealth Ombudsman (OCO) officials (recommendation 19).
Ensure that the IGIS can share IPO information with the OCO and the Australian
Designated Authority (ADA) (recommendation 20).
Ensure that the OCO can share IPO information with IGIS and the ADA
(recommendation 20).
Expand the range of documents relating to an IPO that ASIO must retain and revise
the period for which ASIO must retain it (recommendation 22).
3. The amendments to the Bill also make other technical amendments to clarify the
operation of the Bill. These amendments to the Bill:
Clarify the geographical link between a prescribed communications provider to which
an IPO is directed and the foreign country that is party to the nominated designated
international agreement;
Replace certain terms used in the Bill to clarify the distinction between the use of
those terms in proposed Schedule 1 to the TIA Act, and the provisions of the
Telecommunications Act 1997 and the rest of the TIA Act; and
Clarify that Deputy Presidents of the Administrative Appeals Tribunal can be
nominated to issue international production orders relating to national security.
FINANCIAL IMPACT STATEMENT
4. The amendments to this Bill will have no impact on Government revenue.
3
ABBREVIATIONS
The following abbreviations will be incorporated throughout this supplementary explanatory
memorandum:
Administrative Appeals Tribunal (AAT)
Australian Designated Authority (ADA)
Australian Security Intelligence Organisation Act 1979 (ASIO Act)
Australian Security Intelligence Organisation (ASIO, may also be referred to as the
Organisation in the text of the amendments)
Inspector-General of Intelligence and Security (IGIS)
Inspector-General of Intelligence and Security Act 1986 (IGIS Act)
International Covenant on Civil and Political Rights (ICCPR)
International Production Order (IPO)
Intelligence Services Act 2001 (IS Act)
Joint Standing Committee on Treaties (JSCOT)
Office of the Commonwealth Ombudsman (OCO)
Ombudsman Act 1976 (Ombudsman Act)
Parliamentary Joint Committee on Intelligence and Security (PJCIS)
Telecommunications (Interception and Access) Act 1979 (TIA Act)
Telecommunications Legislation Amendment (International Production Orders) Bill
2020 (the Bill)
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
AMENDMENTS TO THE TELECOMMUNICATIONS LEGISLATION
AMENDMENT (INTERNATIONAL PRODUCTION ORDERS) BILL 2020
1. These amendments are compatible with the human rights and freedoms recognised or
declared in the international instruments listed in section 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011.
Overview of the amendments to the Bill
2. The Telecommunications Legislation Amendment (International Production Orders)
Bill 2020 (the Bill) will amend the Telecommunications (Interception and Access) Act 1979
(the TIA Act), the Inspector-General of Intelligence and Security Act 1986, the Intelligence
Services Act 2001, and the Ombudsman Act 1976 to establish a new framework to assist
Australia's international crime cooperation efforts by giving effect to future international
agreements with partner countries for reciprocal access to electronic data for law enforcement
and national security purposes.
3. The amendments to the Bill will:
Parliamentary scrutiny and requirements for designated international agreements for the
purposes of Schedule 1
Provide that the text of an agreement and the text of any amendments to a designated
international agreement must be set out in the regulations.
Provide that regulations made under clause 3 cannot commence until after the expiry
of the period for parliamentary disallowance in the Legislation Act 2003.
Clarify that a designated international agreement is a treaty subject to Australia's
treaty process, and nothing in Schedule 1 to the TIA Act modifies or limits the
application of the treaty making process to a designated international agreement,
including a proposed amendment to, or extension to the duration of, a designated
international agreement (recommendation 3).
Provide that the text of agreement cannot be set out in the regulations unless the
Attorney-General, after consulting the Minister for Home Affairs and Minister for
Foreign Affairs, is satisfied that the agreement and the foreign country parties to the
agreement meet specified requirements, and the Attorney-General has issued a written
certificate and provided a copy to the Chair of JSCOT.
Require that the Parliamentary Joint Committee on Intelligence and Security
undertake a legislative review into the operation, effectiveness and implications of
proposed Schedule 1 of the TIA Act.
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Applications for international production orders
Introduce a definition of 'urgent circumstances' for the purposes of the proposed
Schedule 1 of the TIA Act.
Provide that, at the time when the Australian Security Intelligence Organisation
(ASIO) seeks the Attorney-General's oral consent to make an application for an
international production order (IPO), ASIO must inform the Attorney-General of the
particulars of the urgent circumstances that necessitate the consent to be given orally.
Ensure that only the Director-General of Security, a Deputy Director-General of
Security, or senior position-holders within ASIO (authorised by the Director-General
of Security) may make an application for an interception or stored communications
international production order on behalf of ASIO.
Ensure that only the Director-General of Security, a Deputy Director-General of
Security, or persons holding a position within ASIO that is equivalent to or higher
than a position occupied by an Executive Level 2 APS employee (authorised by the
Director-General) may make an application for a telecommunications data
international production order on behalf of ASIO.
Oversight and record-keeping
Provide that an Inspector-General of Intelligence and Security (IGIS) official may
access the register of international production orders.
Ensure that protected information can be used, record and disclosed for the purposes
of any functions or duties, or the exercise of any powers, available to IGIS and Office
of the Commonwealth Ombudsman (OCO) officials.
Ensure that the Inspector-General of Intelligence and Security (IGIS) can share IPO
information with the OCO and the Australian Designated Authority (ADA).
Ensure that the OCO can share IPO information with IGIS and the ADA.
Expand the range of documents relating to an IPO that ASIO must retain and
circumstantially extend the period for which ASIO must retain these documents.
4. The amendments to the Bill also:
Clarify the requisite geographical nexus between a prescribed communications
provider to which an international production order is provided and the designated
international agreement nominated in the order.
Replace certain terms used in the Bill to clarify the distinction between the use of
those terms in proposed Schedule 1 to the TIA Act, and the provisions of the
Telecommunications Act 1997 and the rest of the TIA Act.
Clarify that Deputy Presidents of the Administrative Appeals Tribunal may be
nominated to issue international production orders related to interception.
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Human rights implications
5. The amendments may engage the following human rights in the International
Covenant on Civil and Political Rights (ICCPR), which were identified in the Statement of
Compatibility in the Explanatory Memorandum to the Bill, as introduced and read for a
second time in the House of Representatives on 5 March 2020:
the right to life in Article 6 of the ICCPR,
the right to freedom from arbitrary or unlawful interference with privacy contained in
Article 17 of the ICCPR,
the right to freedom of expression in Article 19 of the ICCPR,
the right to peaceful assembly in Article 21 of the ICCPR, and
the right to freedom of association in Article 22 of the ICCPR.
Statutory requirements for designated international agreements
6. The amendments establishing a framework and requirements for the Attorney-
General, in consultation with the Minister and the Minister for Foreign Affairs, to issue
statutory requirements certificates in relation to agreements and foreign country parties to
agreements positively engage several human rights. These additional statutory safeguards and
limitations ensure and provide assurance to the public that, agreements are appropriate in the
circumstances having regard to how the agreement and the foreign country preserve, protect
and promote fundamental human rights and protection of those rights.
7. These amendments include requirements that the Attorney-General be satisfied of
numerous requirements, including that:
The agreement is appropriate in the circumstances, having regard to the foreign
country's respects the rule of law and its respect for its obligations under international
law relating to human rights.
The agreement provides that orders from a foreign country are used in compliance
with the foreign country's domestic law.
The agreement provides that orders may only be issued by the foreign country for the
purposes of obtaining information relevant to the prevention, detection, investigation
or prosecution of serious crime.
The agreement provides that the foreign country is not permitted to issue orders for
the purposes of investigating, prosecuting or punishing a person on account of their
political opinions.
The agreement does not permit orders to be issued for the purposes of obtaining
information about the communications of a person who is an Australian citizen or a
permanent resident of Australia.
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The agreement provides for limitations and safeguards relating to the use, handling
and disclosure of information obtained in accordance with orders.
The agreement, so far as it relates to orders issued by a foreign country, is appropriate
in the circumstances, specifically having regard to the matters. Such matters are the
criteria for issuing orders, and limitations on the scope, object of the orders, the period
for which orders are in force.
The agreement does not permit orders to be issued on behalf of another country
(including Australia).
The agreement does not impose obligations on the foreign country to share
information it has obtained in accordance with orders with another country (including
Australia).
That a written assurance in accordance with 3(2) or (5) has been received.
8. These additional requirements ensure that there are minimum safeguards and
limitations satisfied prior to designating an agreement for the purposes of the international
production order framework. These amendments have been made to the Bill to introduce
safeguards and limitations in relation to the extent to which agreements may permit
authorities of a foreign country to Australian entities.
9. While the Attorney-General is required to be satisfied that an agreement does not
permit orders to be used for the purposes of obtaining information about the communications
of a person who is an Australian citizen or permanent resident of Australia, amendments
introducing clause 3B may engage human rights to the extent that persons in Australia may
be affected by an order issued by a foreign country. An order may not be issued for the
purposes of obtaining information on Australian citizen or permanent resident of Australia.
However, it is possible that information produced pursuant to an order may incidentally
include information about such persons. Where such collection occurs, the agreement will
provide for limitations and safeguards relating to the use, handling and disclosure of
information obtained in accordance with orders (this may include requiring a foreign country
to adopt certain principles or procedures when dealing with information relating to a person
who is an Australian citizen or permanent resident of Australia).
The right to freedom from protection against arbitrary or unlawful interference with privacy
contained in Article 17 of the ICCPR
10. Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or
unlawful interference with their privacy, family, home or correspondence. The term
'unlawful' in Article 17 of the ICCPR means that no interference can take place except as
authorised under domestic law. The protection against arbitrary or unlawful interference with
privacy under Article 17 can be permissibly limited in order to achieve a legitimate objective
and where the limitations are lawful and not arbitrary. The term unlawful in Article 17 of the
ICCPR means that no interference can take place except as authorised under domestic law.
Additionally, the term arbitrary in Article 17(1) of the ICCPR means that any interference
with privacy must be in accordance with the provisions, aims and objectives of the ICCPR
and should be reasonable in the particular circumstances.1 The United Nations Human Rights
Committee has interpreted reasonableness to mean that any limitation must be proportionate
and necessary in the circumstances.
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11. The purpose of the international production order framework, and the associated
limitations on the protection against arbitrary or unlawful interference with privacy, are to
protect national security, public safety, and address crime and terrorism. The Bill aims to
protect the rights and freedoms of individuals by providing law enforcement and national
security agencies with the tools they need to keep Australians safe.
12. To the extent that a person in Australia is affected by an order issued by a foreign
country pursuant to an designated international agreement, this amendment promotes the
right to freedom from arbitrary or unlawful interference with privacy by ensuring that, before
issuing a statutory requirements certificate, the Attorney-General is satisfied that of a range of
requirements and standards, many of which engage positively this right (such as regard to the
foreign country's respect for its own international human rights law obligations, requirements
that agreements must be for preventing, detecting, investigating and prosecuting serious
crime, and provides for limitations and safeguards relating to the use, handling and disclosure
of information obtained in accordance with orders.
The right to freedom of expression in Article 19 and the rights to peaceful assembly and the
right to freedom of association in Article 21 and 22 of the ICCPR
13. The right to freedom of expression protects the right to hold opinions without
interference and the right to express those opinions. The rights to peaceful assembly and
association protect the rights of individuals and groups to meet for a common purpose or in
order to exchange ideas and information, to express their views publicly and to hold a
peaceful protest.
14. To the extent that a person in Australia is affected by an order issued by a foreign
country pursuant to a designated international agreement, this amendment promotes the rights
to freedom of expression, and the rights to peaceful assembly and freedom of association to
the extent they apply to freedom of expression, by ensuring that, before issuing a statutory
requirements certificate, the Attorney-General be satisfied that the agreement provides that
the foreign country is not permitted to issue orders for the purposes of investigating,
prosecuting or punishing a person on account of their political opinions.
The right to freedom from protection against arbitrary or unlawful interference with
privacy contained in Article 17 of the ICCPR
15. Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or
unlawful interference with their privacy, family, home or correspondence. The term
'unlawful' in Article 17 of the ICCPR means that no interference can take place except as
authorised under domestic law. The use of the term 'arbitrary' means that any interference
with privacy must be in accordance with the provisions, aims and objectives of the ICCPR
and should be reasonable in the particular circumstances. The United Nations Human Rights
Committee has interpreted 'reasonableness' to imply that any limitation must be
proportionate and necessary in the circumstances to achieve a legitimate objective.
Disclosure of protected information
16. Part 11 of the Bill prohibits the use, recording or disclosure of protected information
relevant to an IPO except in certain circumstances. The circumstances in which information
may be disclosed are outlined throughout Part 11.
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17. The amendments seek to ensure the Commonwealth Ombudsman, the Australian
Designated Authority and the office of the Inspector-General of Intelligence and Security are
able to share and obtain information relevant to their functions and powers under the Bill by
including additional exemptions in Part 11 specific to this purpose.
18. The purpose of the international production order framework is to enhance Australian
agency's access to electronic evidence located in foreign countries for the purpose of
preventing, detecting, investigating and prosecuting serious crimes in a way that
appropriately balances these legitimate aims with an individual's right to privacy.
Comprehensive oversight by the Commonwealth Ombudsman and the Inspector-General of
Intelligence and Security forms part of the mechanisms in the Bill which ensure the right to
privacy is not arbitrarily or unreasonably impeded. These bodies require access to the
relevant information necessary for them to effectively undertake this essential role, including
by sharing information between each other and the Australian Designated Authority.
19. Noting the specific limited circumstances for which the Commonwealth Ombudsman,
the Australian Designated Authority and the office of the Inspector-General of Intelligence
and Security may share information with each other, and the relevance of the purpose of that
sharing with their functions and powers in relation to the aims of the international production
order framework, the privacy of individuals is limited in the least rights restrictive way
possible as the amendment does not permit the use of information for a purpose not relevant
to achieving a legitimate aim of the Bill. As such, this amendment is necessary, reasonable
and proportionate.
Record-keeping
20. The amendments to clauses 135 and 136 extend ASIO's record-keeping requirements
to ensure the relevant information is retained for the purpose of facilitating the oversight
responsibilities of the IGIS. This amendment engages the right to privacy as records that
ASIO will be required to keep may contain personal information.
21. As discussed above, a purpose of the Bill is to ensure limitations on a person's right to
privacy are not arbitrary and are reasonable, necessary and proportionate. Accordingly, to
effectively oversee ASIO's use of the international production order framework, the IGIS
requires ASIO to retain certain records to ensure ASIO is acting in compliance with the
legislation and obligations under the relevant designated international agreement.
22. The privacy of individuals is limited in the least rights restrictive way possible to
facilitate more fulsome oversight by the IGIS. As such, this amendment is necessary,
reasonable and proportionate.
The right to life in Article 6 of the ICCPR
23. Article 6(1) of the ICCPR protects the inherent right to life and the right to not be
arbitrarily deprived of life.
24. The international production order framework enables Australia to give effect to
agreements with governments of foreign countries for the purpose of obtaining data for the
purposes of preventing, detecting, investigating and prosecuting serious crime. These
agreements are expected to operate under the principle of reciprocity. As governments of
foreign countries are responsible for their own criminal offences, it may be contemplated that
10
Australia enters into an agreement with a foreign country where death is the penalty for
certain serious criminal offences and therefore, in accordance with the international
production order framework, enables communications providers in Australia to provide
information that foreign government for the purpose of prosecuting a person for an offence
for which the death penalty relates.
25. The amendments strengthen and clarify clause 3 of the Bill. If the law of a foreign
country party to an agreement contains offences that are punishable by death, then the text of
a bilateral agreement cannot be set out in the regulations, or the foreign country cannot be
declared a recognised party to the agreement, unless the Minister has received a written
assurance from the government of the foreign country relating to the use or non-use of
Australian-sourced information obtained by virtue of the agreement in any proceeding by
way of a prosecution for a death penalty offence in the foreign country. The written assurance
may deal with how Australian-sourced information may be used by the foreign country in
proceedings in connection with prosecutions for death penalty offences, including for
exculpatory purposes, and subject to any restrictions or conditions required by Australia, or it
may deal with how Australian-sourced information is not to be used in prosecutions for death
penalty offences, or a combination of both.
26. The amendments inserting new clause 3 further reflect Australia's long standing
bipartisan opposition to the death penalty. The amendments recognise the right to life by
ensuring that the Minister must require governments of foreign countries that have the death
penalty to provide a written assurance in relation to the use or non-use of Australian-sourced
information in a prosecution for an offence punishable by death before an agreement with
that country can be a designated international agreement. This is not left to the discretion of
the Minister as clause 3 prohibits a bilateral agreement from being set out the regulations and
a foreign country being declared a recognised party where no assurance is received from the
foreign country relating to the use or non-use of Australian-sourced information in
proceedings connected with prosecutions for death penalty offences.
27. A further safeguard is provided in new subclause 3B, which provides that, if the law
of a foreign country contains death penalty offences, the Attorney-General must be satisfied
that the Minister has received a written assurance from the government of the foreign country
before issuing a statutory requirements certificate in relation to the agreement and foreign
country.
Conclusion
28. The amendments are compatible with human rights because they clarify and
strengthen the limitations and safeguards in the Bill. To the extent that the measures limit
human rights, those limitations are reasonable, necessary and proportionate in achieving a
legitimate aim.
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NOTES ON AMENDMENTS
Amendments 1 to 4 Schedule 1, item 4, page 4
1. Amendments 1 to 4 amend several items to remove references to the terms designated
communications provider and replace them with new defined term prescribed
communications provider. Designated communications provider is an existing defined term
in the Telecommunications Act 1997. The definition of prescribed communications provider
is distinct from similar definitions within the Telecommunications Act 1997, such as
references to 'designated communications provider' under section 317C of that Act.
Amendment 5 Schedule 1, page 5 (after line 25)
2. Amendment 5 amends the IGIS Act by inserting new section 34AA after section 34.
New section 34AA has been inserted to ensure that the secrecy offence at section 34 of the
IGIS Act does not prevent the IGIS or a member of the staff of the IGIS from being able to
lawfully share IPO information with either an OCO official or an ADA official. This
amendment refers to the IGIS and a 'member of staff' of the IGIS for consistency with the
IGIS Act. This covers the same range of officials as the term IGIS official, which is defined
in the TIA Act and used throughout proposed Schedule 1 to the TIA Act.
3. The definition of IPO information has been drafted to include both protected
information within the meaning of schedule 1 to the TIA Act, as well as other information
related to the operation of that schedule. It was intended that this would ensure IGIS is not
prevented from sharing a broader range of information relating to the operation of Schedule 1
to the TIA Act where that information is relevant to the functions of either the Ombudsman
or ADA.
4. Proposed subsection 34AA(1) allows for either the IGIS, or a member of the staff of
the IGIS, to divulge or communicate IPO information to an OCO official if that information
is relevant to the Commonwealth Ombudsman's functions and powers, and the Inspector-
General is satisfied on reasonable grounds that the OCO has satisfactory arrangements in
place for protecting the information. The requirement for there to be satisfactory
arrangements to protect information ensures information is only shared with the OCO that
has arrangements in place to protect information that may be highly classified due to the
nature of the investigations undertaken by ASIO.
5. Proposed subsection 34AA(2) similarly allows the IGIS, or a member of the staff of
the IGIS, to share IPO information with an ADA official, where the information is relevant to
the ADA's functions or powers under Schedule 1 to the TIA Act and the ADA has
satisfactory arrangements in place for protecting that information. These provisions have
been developed to ensure the IGIS's information sharing function is subject to the appropriate
safeguards to protect against the disclosure of sensitive information.
6. Proposed subsection 34AA(3) inserts definitions into the IGIS Act for the purposes of
new section 34AA. Subsection 34AA(3) provides that the term Australian Designated
Authority has the same meaning as in proposed Schedule 1 to the TIA Act. Ombudsman
official is defined to have the same meaning as in the TIA Act. Proposed subsection 34AA(3)
defines Australian Designated Authority official, to mean the ADA or an APS employee in
the Department administered by the Attorney-General who has duties relating to the functions
or powers of the ADA under proposed Schedule 1 to the TIA Act. This ensures that IGIS
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officials may share IPO information with officials in the performance or function of the
ADA.
7. This definition has been written to capture all staff within the Attorney-General's
Department who are either performing functions of the ADA, or are support staff assisting
the performance of those functions. Only Executive Level 1 level staff or higher may be
delegated the ability to perform functions of the ADA. However, it was intended that APS
level employees will support the performance of these functions. In this way, the definition of
Australian Designated Authority official ensures the IGIS can share information with relevant
staff below the Executive Level 1 level where appropriate.
Amendment 6 Schedule 1, page 5 (before line 26)
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8. Amendment 6 inserts new paragraph 29(1)(bf) within the IS Act. New paragraph
29(1)(bf) requires the PJCIS to commence a review of the operation, effectiveness, and
implications of proposed Schedule 1 to the TIA Act.
9. Proposed subparagraphs 29(1)(bf)(i) and (ii) require this review to commence on the
earlier of either the fifth anniversary of the day on which Schedule 1 to the TIA Act
commences, or the third anniversary of the day on which the first designated international
agreement (within the meaning of the proposed Schedule 1 of the TIA Act) enters into force
for Australia. This timeframe is intended to provide an opportunity for a designated
international agreement to commence and have time to operate before a statutory review
commences.
10. Paragraph 29(1)(bf) is intentionally silent on when this review must be completed, in
order to grant the PJCIS the necessary flexibility to complete this review in an appropriate
timeframe.
Amendment 7 Schedule 1, page 8 (before line 20)
11. Amendment 7 inserts new subsections 35(3A) and (3B), and 35(9) into the
Ombudsman Act. These new subsections have been inserted to ensure that an OCO officer is
not prevented from being able to lawfully share IPO information with either an IGIS or ADA
official. This amendment refers to an 'officer' of the OCO for consistency with the rest of
section 35 of the Ombudsman Act. This term includes all persons included in the term
Ombudsman official, which is defined in the TIA Act and used throughout proposed Schedule
1 to the TIA Act. The definition of IPO information has been drafted to include both
protected information within the meaning of Schedule 1 to the TIA Act, as well as other
information related to the operation of that schedule.
12. Proposed paragraphs 35(3A)(a) and (b) ensure that OCO officers may divulge or
communicate IPO information to an IGIS official if that information is relevant to the
functions or powers of the IGIS, and the OCO is satisfied on reasonable grounds that the
IGIS has satisfactory arrangements in place for protecting the information. Proposed
paragraphs 35(3B)(a) and (b) similarly permit OCO officers to share IPO information with an
ADA official, where the information is relevant to the ADA's functions or powers under
Schedule 1 to the TIA Act, and the Ombudsman is satisfied on reasonable grounds that the
ADA has satisfactory arrangements in place for protecting the information.
13. Proposed subsection 35(9) inserts definitions into the Ombudsman Act for the
purposes of new subsections 35(3A) and (3B). Proposed subsection 35(9) provides that the
term Australian Designated Authority has the same meaning as in proposed Schedule 1 to the
TIA Act, which uses the definition of IGIS official from the ASIO Act. IGIS official is
defined to have the same meaning as in the TIA Act. The term IGIS official is defined in the
TIA Act to include a member of the staff referred to in subsection 32(1) of the IGIS Act.
Proposed subsection 35(9) defines Australian Designated Authority official, to mean the
ADA or an APS employee in the Department administered by the Attorney-General who has
duties relating to the functions or powers of the ADA under Schedule 1 to the TIA Act. This
ensures that OCO officers may share IPO information with officials in the ADA where it is
relevant to the ADA's functions or powers.
14. This definition has been written to capture all staff within the Attorney-General's
Department who are either performing functions of the ADA, or are support staff assisting
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the performance of those functions. Only Executive Level 1 level staff or higher may be
delegated the ability to perform functions of the ADA. However, it was intended that APS
level employees will support the performance of these functions. In this way, the definition of
Australian Designated Authority official ensures the OCO can share information with
relevant staff below the Executive Level 1 level where appropriate.
Amendment 8 Schedule 1, item 16, page 9 (lines 3 and 4)
15. Amendment 8 omits item 16, reflecting the omission of the term carriage service
provider.
Amendment 9 Schedule 1, item 17, page 9 (lines 5 and 6)
16. Amendment 9 omits item 17, reflecting the omission of the term carrier.
Amendment 10 Schedule 1, item 18, page 9 (lines 7 to 10)
17. Amendment 10 omits item 18, reflecting the omission of the term carrier.
Amendments 11 and 12 Schedule 1, item 43, page 12
18. Amendments 11 and 12 amend several parts of item 43 to remove references to the
terms designated communications provider and replace them with prescribed
communications provider.
Amendment 13 Schedule 1, item 43, page 13 (after line 25)
19. Amendment 13 provides that the definition of based in a foreign country has the
meaning given in clause 10A inserted by amendment 66.
Amendment 14 Schedule 1, item 43, page 13 (lines 26 and 27)
20. Amendment 14 omits the definition of carriage service in clause 2.
Amendment 15 Schedule 1, item 43, page 13 (lines 28 and 29)
21. Amendment 15 omits the definition of carriage service provider in clause 2.
Amendment 16 Schedule 1, item 43, page 14 (lines 1 to 3)
22. Amendment 16 omits the definition of carrier in clause 2.
Amendment 17 Schedule 1, item 43, page 14 (lines 24 to 29)
23. Amendment 17 omits the definition of designated communications provider in
clause 2.
Amendment 18 Schedule 1, item 43, page 14 (after line 32)
24. Amendment 18 inserts a new definition of eligible position-holder within proposed
Schedule 1 of the TIA Act. The term is defined to mean an ASIO employee, or an ASIO
15
affiliate, who holds, or is acting in, a position in ASIO that is equivalent to or higher than a
position occupied by an Executive Level 2 APS employee.
25. The inclusion of 'affiliates' in the definition of eligible position-holder will ensure
that personnel seconded to ASIO to perform duties are able to be authorised by the Director-
General of Security to make applications for IPOs relating to telecommunications data on
ASIO's behalf where appropriate (e.g. an AFP officer seconded to lead an investigative
team).
Amendment 19 Schedule 1, item 43, page 15 (lines 4 to 6)
26. Amendment 19 omits the definition of individual carriage service in clause 2.
Amendment 20 Schedule 1, item 43, page 15 (before line 7)
27. Amendment 20 inserts the definition of individual transmission service in clause 2 to
mean a transmission service to the extent to which the service is supplied using a particular
telecommunications identifier. This replaces the definition of individual carriage service,
omitted by amendment 19.
Amendment 21 Schedule 1, item 43, page 15 (line 19)
28. Amendment 21 removes a reference to the term designated communications provider
and replaces it with the new defined term prescribed communications provider.
Amendment 22 Schedule 1, item 43, page 16 (after line 22)
29. Amendment 22 inserts the definition of network entity in clause 2 to mean a person
who owns or operates a telecommunications network that is used to supply a transmission
service to the public or a section of the public. This replaces the definition of carrier, omitted
by amendment 16.
Amendment 23 Schedule 1, item 43, page 16 (after line 30)
30. Amendment 23 inserts the definition of operates in a foreign country to have the
meaning given in clause 10A, inserted by amendment 66.
Amendment 24 Schedule 1, item 43, page 16 (after line 32)
31. Amendment 24 inserts the definition of prescribed communications provider in
clause 2. This replaces the definition of designated communications provider, omitted by
amendment 17. Designated communications provider is an existing defined term in the
Telecommunications Act 1997. The definition of prescribed communications provider is
distinct from similar definitions within the Telecommunications Act 1997, such as references
to 'designated communications provider' under section 317C of that Act.
16
Amendment 25 Schedule 1, item 43, page 17 (after line 24)
32. Amendment 25 inserts the definition for senior position-holder within the proposed
Schedule 1 of the TIA Act. This term is defined to have the same meaning as that contained
within the ASIO Act, in order to ensure consistency.
33. Senior position-holder is defined in the ASIO Act to mean an ASIO employee, or an
ASIO affiliate, who holds, or is acting in, a position in ASIO that is equivalent to or higher
than a position occupied by an SES employee; or known as Coordinator.
34. The inclusion of 'affiliates' in the definition of senior position-holder will ensure that
personnel seconded to ASIO to perform duties are able to be authorised by the Director-General
of Security to make applications for IPOs relating to interception and stored communications on
ASIO's behalf where appropriate (e.g. an AFP officer seconded to lead an investigative team)).
Amendment 26 Schedule 1, item 43, page 18 (line 3)
35. Amendment 26 removes reference to the term carriage service and replaces it with
the new defined term transmission service.
Amendment 27 Schedule 1, item 43, page 18 (after line 3)
36. Amendment 27 provides that the term statutory requirements certificate has the
meaning given in subclause 3B(2).
Amendments 28 to 42 Schedule 1, item 43
37. Amendments 28 to 42 amend several parts of item 43 to remove references to the
terms carrier, carriage service provider, and carriage service and replace them with new
defined terms network entity, transmission service provider, and transmission service
respectively.
Amendment 43 Schedule 1, item 43, page 22 (after line 8)
38. Amendment 43 inserts the definition of transmission service in to clause 2 to mean a
service for carrying communications by means of guided and/or unguided electromagnetic
energy. This replaces the defined term carriage service, omitted in amendment 14.
Amendment 44 Schedule 1, item 43, page 22 (before line 9)
39. Amendment 44 inserts the definition of transmission service provider in to clause 2
to mean a person who supplies a transmission service to the public or a section of the public.
This replaces the defined term carriage service provider, omitted in amendment 15. Carriage
service provider is an existing defined term in the Telecommunications Act 1997. The
definition of transmission service provider does not require a nexus to Australia.
17
Amendment 45 Schedule 1, item 43, page 22 (after line 9)
40. Amendment 45 provides that the meaning of the term urgent circumstances is
affected by clause 17A as inserted by amendment 73.
Amendment 46 Schedule 1, item 43, page 22 (line 17) to page 23 (line 10)
41. Amendment 46 omits subclauses 3(1) and (2) and substitutes new subclauses 3(1) and
(2).
42. New subclause 3(1) sets out the conditions for a bilateral agreement to be a
designated international agreement for the purposes of Schedule 1 to the TIA Act. For an
agreement to be a designated international agreement, the provisions requires the agreement
to be a treaty between Australia and a foreign country, the full English text of the agreement,
and not just the name of the agreement, to have been published in the regulations, and the
agreement to have entered into force for both Australia and the foreign country.
43. Also under new subclause 3(1), if Australia and the foreign country subsequently
make an amendment to the text of a designated international agreement, the text of the
amendment must also be set out in the regulations and the amendment must have entered into
force for both Australia and the foreign country before the agreement, as affected by the
amendments, is treated as a designated international agreement for the purposes of Schedule
1 to the TIA Act.
44. This ensures that the regulations provide certainty and transparency for Parliament
and the public about the content of designated international agreements and any subsequent
amendments to the text of designated international agreements. Any regulations made under
new subclause 3(1) will be legislative instruments and subject to parliamentary scrutiny and
disallowance.
45. Subclause 3(1) contains a note that clarifies that an agreement mentioned in paragraph
(a) is a treaty to which Australia is party. Proposed treaty actions, such as amendments and
extensions to the duration of designated international agreements, are subject to Australia's
treaty-making process. In accordance with these treaty process, the text of each agreement
and amendment will be subject to parliamentary scrutiny, including consideration by JSCOT,
and published on the Australian Treaties Library on the AustLII website
(www.austlii.edu.au).
46. New subclause 3(1A) provides that, if a bilateral agreement deals with the issuing of
orders (such as production orders, subpoenas or warrants) by a competent authority of the
foreign country, then the text of the agreement cannot be set out in the regulations unless a
statutory requirements certificate has been issued by the Attorney-General in relation to the
agreement and the foreign country party to the agreement. This ensures that, where the
agreement would permit authorities of a foreign country to issue orders to Australian entities,
then the Attorney-General must consider the statutory requirements in new clause 3B and be
satisfied that those requirements are met before the agreement can be set out in the
regulations pursuant to paragraph 3(1)(b) and be treated as a designated international
agreement for the purposes of Schedule 1 to the TIA Act.
47. New subclause 3(2) places a further restriction on when a bilateral agreement that
deals with the issuing of orders by a foreign country may be set out in the regulations
18
pursuant to paragraph 3(1)(b). If the law of the foreign country contains offences that are
punishable by death, then the text of the agreement cannot be set out in the regulations unless
the Minister has received a written assurance from the government of the foreign country
relating to the use or non-use of Australian-sourced information obtained by virtue of the
agreement in any proceeding by way of a prosecution for a death penalty offence in the
foreign country.
48. New subclause 3(2) is designed to be flexible as to the form, content and nature of the
written assurance to be received, as this will depend on the particular foreign country and the
particular agreement. This written assurance may be contained in a single written document,
or across a number of documents, such as the text of the agreement, a letter or exchange of
letters, or a record of understanding or memorandum of understanding. The written assurance
may deal with how Australian-sourced information may be used by the foreign country in
proceedings in connection with prosecutions for death penalty offences, including for
exculpatory purposes, and subject to any restrictions or conditions required by Australia, or it
may deal with how Australian-sourced information is not to be used in prosecutions for death
penalty offences, or a combination of both.
49. The intention of new subclause 3(2) is to give effect to Australia's long-standing
bipartisan opposition to the death penalty in the context of reciprocal cross-border access to
communications data, and complements existing death penalty safeguards across the full
spectrum of Australia's international crime cooperation frameworks. The use of assurances to
protect Australia's death penalty interests is a longstanding practice in international crime
cooperation frameworks, including mutual legal assistance regimes. The provision expressly
prohibits an agreement from being set out in the regulations and being treated as a designated
international agreement for the purposes of Schedule 1 to the TIA Act, except in
circumstances where the Minister has received a written assurance from the government of a
foreign country that has laws including death penalty offences.
50. A further safeguard is provided in new clause 3B, which provides that the Attorney-
General must be satisfied that the Minister has received a written assurance from the
government of the foreign country before issuing a statutory requirements certificate in
relation to the agreement and foreign country.
Amendment 47 Schedule 1, item 43, page 23 (lines 11 to 17)
51. Amendment 47 omits subclause 3(3) and substitutes new subclause 3(3).
52. New subclause 3(3) sets out the conditions for a multilateral agreement to be a
designated international agreement. For a multilateral agreement to be a designated
international agreement, the provisions require the agreement to be a treaty entered into
between Australia and two or more foreign countries, the full English text of the agreement,
and not just the name of the agreement, to be published in the regulations, and the agreement
to have entered into force for Australia. The text of each agreement will also be tabled in
Parliament and published on the Australian Treaties Library on the AustLII website
(www.austlii.edu.au).
53. New subclause 3(3) also provides that, if Australia and the foreign country parties to
the agreement subsequently make an amendment to the text of a designated international
agreement, the text of the amendment must also be set out in the regulations and the
amendment must have entered into force for Australia before the agreement, as affected by
19
the amendments will be treated as a designated international agreement for the purposes of
Schedule 1 to the TIA Act.
54. This ensures that the regulations provide certainty and transparency to Parliament and
the public about the content of agreements and amendments to agreements. Any regulations
made under new subclause 3(3) will be legislative instruments and subject to parliamentary
scrutiny and disallowance.
55. Subclause 3(3) contains a note that clarifies that an agreement mentioned in paragraph
(a) is a treaty to which Australia is party. Proposed treaty actions, such as amendments and
extensions to the duration of designated international agreements, are subject to Australia's
treaty-making process. In accordance with this process, the text of each agreement and
amendment will be subject to parliamentary scrutiny, including consideration by JSCOT, and
published on the Australian Treaties Library on the AustLII website (www.austlii.edu.au).
Amendment 48 Schedule 1, item 43, page 23 (after line 21)
56. Amendment 48 inserts new subclause 3(4A). New subclause 3(4A) provides that, if a
multilateral agreement deals with the issuing of orders by a competent authority of each of
the foreign country parties, then a foreign country party to the agreement cannot be declared a
recognised party under subclause 3(4) unless a statutory requirements certificate has been
issued by the Attorney-General in relation to the agreement and that foreign country party to
the agreement. This ensures that where a multilateral agreement would permit the authorities
of a foreign country to issue orders to Australian entities, then the Attorney-General must
consider the statutory requirements in new clause 3B and be satisfied that those requirements
are met in relation to the agreement and the foreign country parties to that agreement before
those countries can be declared as recognised parties to the agreement.
57. These amendments are intended to provide flexibility so that Attorney-General may
issue a statutory requirements certificate that relates to a multilateral agreement and all
foreign country parties to that agreement or, alternatively, if the Attorney-General is only
satisfied the statutory requirements in clause 3B are met in relation to particular foreign
country parties to that agreement, may issue a certificate only in relation to those particular
foreign countries. The Attorney-General may decide to issue further statutory certificates in
relation to additional foreign country parties to a multilateral agreement if subsequently
satisfied of the statutory requirements in relation to additional foreign country parties.
Amendment 49 Schedule 1, item 43, page 23 (line 22) to page 24 (line 1)
58. Amendment 49 omits existing subclause 3(5) and inserts a new subclause 3(5). New
subclause 3(5) places a further restriction on when a foreign country party to a multilateral
agreement that deals with the issuing of orders by a competent authority of each of the
foreign country may be declared as a recognised party pursuant to subclause 3(4). If the law
of one or more of those foreign countries contains offences that are punishable by death, then
those foreign countries cannot be declared as a recognised party under subclause 3(4) unless
the Minister has received a written assurance from the government of the foreign country
relating to the use or non-use of Australian-sourced information obtained by virtue of the
agreement in connection with any proceeding by way of prosecution for a death penalty
offence in the foreign country. Subclause 3(5) clarifies that information is obtained by virtue
of the agreement if it is obtained pursuant to an order issued by the competent authority of the
foreign country pursuant to the agreement.
20
59. This written assurance may be contained in a single written document, or across a
number of documents, such as the text of the agreement, a letter or exchange of letters, or a
record of understanding or memorandum of understanding. The written assurance may deal
with how Australian-sourced information may be used by the foreign country in proceedings
in connection with prosecutions for death penalty offences, including for exculpatory
purposes, and subject to any restrictions or conditions required by Australia, or it may deal
with how Australian-sourced information is not to be used in prosecutions for death penalty
offences, or a combination of both. New subclause 3(5) is designed to be flexible as to the
form, content and nature of the written assurance to be received as this will depend on the
particular foreign country and the particular agreement. The policy intention of this provision
is to give effect to Australia's long-standing bipartisan opposition to the death penalty in the
context of reciprocal cross-border access to communications data, and complements existing
death penalty safeguards across the full spectrum of Australia's international crime
cooperation frameworks. The use of assurances to protect Australia's death penalty interests
in a longstanding practice in international crime cooperation frameworks, including mutual
legal assistance regimes. from the provision expressly prohibits a foreign country that has
laws including death penalty offences from being declared as a recognised party under
subclause 3(4) for the purpose of Schedule 1 to the TIA Act except in circumstances where
the Minister has received, from the government of that foreign country, a written assurance
relating to the use or non-use of Australian-sourced information in proceedings by way of a
prosecution for a death penalty offence.
60. A further safeguard is provided in new clause 3B, which provides that the Attorney-
General must be satisfied that the Minister has received a written assurance from the
government of the foreign country before issuing a statutory requirements certificate in
relation to that foreign country.
Amendment 50 Schedule 1, item 43, page 24 (after line 14)
61. Amendment 50 inserts new subclause 3(7A), which defines death penalty offence to
mean an offence against a law of a foreign country that is punishable by death.
Amendment 51 Schedule 1, item 43, page 24 (after line 25)
62. Amendment 51 inserts new clauses 3A, 3B and 3C.
Disallowance of regulations relating to designated international agreements
63. Regulations made for the purposes of clause 3 will be legislative instruments and
subject to parliamentary scrutiny and disallowance. New clause 3A sets out the process for
disallowance of regulations made for the purposes of clause 3.
64. Subclause 3A(1) provides that clause 3A applies to regulations made for the purpose
of clause 3, which includes regulations setting out the text of an agreement, or the text of an
amendment to an agreement, or declaring a foreign country to be a recognised party.
65. Subclause 3A(2) provides that either House of Parliament may, following a motion
upon notice, pass a resolution disallowing the regulations. The notice must have been given
in a House of Parliament within 15 sitting days of that House after a copy of the regulations
was tabled and the resolution must be passed within 15 sitting days of that House after the
notice is given. This makes clear that regulations setting out the text of an agreement or the
21
text of an amendment to a designated international agreement will be subject to parliamentary
disallowance.
66. Subclause 3A(3) sets out when regulations made for the purposes of clause 3 take
effect. The regulations will take effect on the day immediately after the last day upon which a
disallowance resolution could have been passed. This makes clear that regulations made for
the purposes of clause 3 cannot commence until after the applicable parliamentary
disallowance period has expired.
67. Subclause 3A(4) provides for circumstances where the regulations will be deemed to
have been disallowed. Subclause 3A(4) closely reproduces subsection 42(2) of the
Legislation Act 2003. Subclause 3A(4) provides that the regulations will be taken to have
been disallowed if a notice of motion to disallow regulations has been given with 15 sitting
days of the relevant House after a copy of the regulations was tabled, and the motion has not
been considered, withdrawn or otherwise disposed of within 15 sitting days after the giving
of the notice. In these circumstances, subclause 3A(3) does not apply, meaning the
regulations would not take effect.
68. Subclause 3A(5) makes clear that section 42 (disallowance) of the Legislation Act
2003 does not apply to the regulations. Two notes are included to explain that the 15 sitting
day notice period mentioned in paragraph 3A(2)(a), and the 15 sitting day disallowance
period mentioned in paragraph 3A(2)(b), are consistent with paragraphs 42(1)(a) and (b)
respectively of the Legislation Act 2003.
Statutory requirements certificate--designated international agreements
69. New clause 3B creates a framework for the Attorney-General to issue statutory
requirements certificates in relation to agreements and foreign country parties to agreements.
The purpose of the statutory requirements certificate is to provide assurance to Parliament
and the public that the Attorney-General has considered the statutory requirements in relation
to an agreement, and is satisfied those requirements are met, prior to an agreement being set
out the regulations for the purposes of paragraphs 3(1)(b) or a foreign country being declared
as a recognised party pursuant to subclause 3(4).
Scope
70. Subclause 3B(1) clarifies that clause 3B only applies, and therefore a statutory
requirements certificate may only be issued, if an agreement deals with the issue of orders by
a competent authority of a foreign country. This is consistent with new subclauses 3(1A) and
3(4A), which only require a statutory requirements certificate to be in force prior to setting
out the text of an agreement in the regulations if that agreement deals with the issuing of
orders by a competent authority of a foreign country (for bilateral agreements), or each of the
foreign countries (for multilateral agreements).
Certificate
71. Subclause 3B(2) provides that the Attorney-General may issue a statutory
requirements certificate in relation to an agreement and a foreign country party to an
agreement. The Attorney-General must consult with both the Minister administering the TIA
Act (the Minister for Home Affairs) and the Minister for Foreign Affairs prior to issuing a
statutory requirements certificate. This consultation requirement is intended to ensure the
22
Attorney-General can be appropriately informed of relevant matters related to proposed
Schedule 1 to the TIA Act, and foreign policy and treaties. This does not prevent the
Attorney-General from also consulting any additional persons or entities that the Attorney-
General considers appropriate.
72. Subclause 3B(3) provides that a statutory requirements certificate is a notifiable
instrument. This ensures there will be public notification that the Attorney-General has
considered the statutory requirements in relation to an agreement and a foreign country, and
is satisfied that those requirements are met. A statutory requirements certificate must be in
force in relation to an agreement and a foreign country before the text of a bilateral agreement
can be set out in regulations for the purposes of new paragraph 3(1)(b) and before a foreign
country can be declared to be a recognised party for the purposes of subclause 3(4).
73. Notifiable instruments are not legislative in nature, meaning that they are published
but are not subject to parliamentary scrutiny or sunsetting. This is appropriate because a
statutory requirements certificate sets out a decision of an administrative nature that is in the
long-term public interest. Publication of certificates on the Federal Register of Legislation
will notify the public that a certificate has been issued, and that subclause 3(1A) or (4A) has
been met, in relation to an agreement.
74. Subclause 3B(4) sets out the statutory requirements that the Attorney-General must be
satisfied of before issuing a statutory requirements certificate in relation to an agreement and
one or more foreign country parties to the agreement. While the Attorney-General must be
satisfied of these requirements prior to issuing a certificate, clause 3B does not prevent the
Attorney-General from considering any additional matters that the Attorney-General may
consider appropriate.
75. Paragraph 3B(4)(c) provides the Attorney-General must be satisfied that the
agreement is appropriate in the circumstances, having regard only to the foreign country's
respect for the rule of law, as well as the foreign country's respect for its own international
human rights law obligations. This reflects Australia's expectations that designated
international agreements will only permit a foreign country to issue orders to Australian
entities if the Attorney-General, in consultation with other Ministers, has considered the
foreign country's respect for the rule of law and for its international human rights obligations.
76. This provision provides flexibility as to the matters that are considered relevant to
determining that the agreement is appropriate in the circumstances, as this will depend on the
nature and scope of orders the agreement permits the foreign country to issue to Australian
entities, and the circumstances of the particular foreign country. A relevant consideration for
respect for the rule of law could be a constitutional structure or system of laws that
establishes checks and balances, including on the exercise of executive power by government
authorities. This provision also allows for regard of principles such as equality and non-
discrimination under the law and before the law. Relevant considerations related to a
country's respect for its international human rights law obligations could include the
international human rights treaties that a country has ratified, and the country's domestic
implementation its international human rights obligations relevant to the issuing of orders
such as protections against arbitrary and unlawful interference with privacy, and protections
for freedom of expression and associate and the right to life.
77. Paragraph 3B(4)(d) provides that the Attorney-General must be satisfied that an
agreement reflects certain minimum requirements and standards in relation to the issue of
23
orders (such as production orders, warrants or subpoenas) by the foreign country to
Australian entities. These requirements must be satisfied in relation to orders (as defined or
described in the agreement) that may be issued by a competent authority of the foreign
country to Australian entities.
78. Subparagraph 3B(4)(d)(i) requires the agreement to provide that orders from the
foreign country are to be issued in compliance with the foreign country's domestic law. This
reflects Australia's expectation that the domestic law of the foreign country will provide the
legal basis for the issuing of orders by the foreign country, and not the agreement. There is no
requirement in proposed Schedule 1 to the TIA Act that an Australian entity comply with an
order from a foreign country.
79. Subparagraph 3B(4)(d)(ii) requires the agreement to provide that orders may only be
issued by the foreign country for the purposes of obtaining information relevant to the
prevention, detection, investigation or prosecution of serious crime (as defined in the
agreement). This reflects Australia's expectation that orders will be issued for law
enforcement and national security purposes in order to address serious crime. This provision
provides flexibility for the scope and meaning of 'serious crime' and the particular activities
to be permitted by the agreement to be negotiated with the relevant foreign country or
countries in relation to each individual agreement.
80. Subparagraph 3B(4)(d)(iii) requires the agreement to provide that the foreign country
is not permitted to issue orders for the purposes of investigating, prosecuting or punishing a
person on account of their political opinions. This reflects Australia's expectation that foreign
countries will not be permitted by agreements to issue orders to Australian entities for the
purposes of intimidating, persecuting or penalising a person because the person holds, or has
expressed, a particular political opinion. This provision is not intended to limit or prevent a
foreign country from pursuing legitimate investigations into serious criminal offences that
may have a political component such as terrorism, violent extremism, foreign interference or
espionage offences.
81. Subparagraph 3B(4)(d)(iv) requires the agreement, so far as it relates to orders issued
by a foreign country, is appropriate in the circumstances, specifically having regard to the
matters set out in subclause 3B(5) relating to the issuing of orders. This reflects Australia's
expectation that either the text of the agreement, or the domestic legal framework of the
foreign country, or both, will set out these requirements and standards in relation to orders to
be issued by the foreign country to Australian entities.
82. Subparagraph 3B(4)(d)(v) provides that the agreement must not permit the foreign
country to issue orders to an Australian entity for the particular purpose of obtaining
information about the communications of a person who is an Australian citizen or a
permanent resident of Australia. This reflects Australia's expectation that, where the
authorities of a foreign country have identified a legitimate requirement to seek access to the
communications of Australian citizens and permanent residents for the purposes of
combatting serious crime, they will use government-to-government mechanisms to request
that information rather than issuing orders directly to Australian private entities.
83. Subparagraph 3B(4)(d)(vi) requires the agreement to include limitations and
safeguards relating to the use, handling and disclosure of information that the foreign country
has obtained from an Australian entity pursuant to an order. This reflects the expectation that
24
sufficient or appropriate limitations and safeguards will be negotiated with the foreign
country and included in the agreement.
84. Subparagraph 3B(4)(d)(vii) requires that the agreement must not permit the foreign
country to issue orders to Australian entities on behalf of, or at the request of, another country
(including Australia). This reflects Australia's expectation that the foreign country should
issue orders for the purposes of their law enforcement or national security investigations
conducted by authorities of that foreign country. It also reflects the expectation that
Australian authorities not be permitted to circumvent Australian legislative requirements for
accessing information by requesting a foreign government to obtain information from an
Australian entity on behalf of Australian authorities, and that the foreign government cannot
obtain information on behalf of a third-party country that is not permitted to directly issue
orders to Australian entities.
85. Subparagraph 3B(4)(viii) complements the requirement in subparagraph 3B(4)(d)(vii)
by requiring that the agreement must not require or create an obligation on the foreign
country to share information it has obtained pursuant to an order it has issued to an Australian
entity with a third-party government. This provision is not intended to prevent authorities in
the foreign country from voluntarily sharing information with Australian authorities, for
example, if those authorities have identified the information may be relevant to addressing
crime in Australia.
86. Paragraph 3B(4)(e) applies if one or more of offences against the law of the foreign
country are death penalty offences, as defined in new clause 7A. In those circumstances the
Attorney-General must be satisfied that the Minister has received a written assurance from
the government of the foreign country in accordance with subclause 3(2) or (5).
87. Subclause 3B(5) sets out the matters the Attorney-General must consider in reaching a
state of satisfaction that the agreement, so far as it relates to orders issued by the foreign
country, is appropriate in the circumstances for the purposes of subparagraph 3B(4)(d)(iv).
Subclause 3B(5) provides that the matters to be considered are the criteria for issuing of
orders, the limitations on the scope and objects of orders, and limits on the periods for which
orders are in force, as set out in the agreement or the law of the foreign country. This reflects
Australia's expectation that the foreign country's orders will be tailored in scope and not
permit indiscriminate collection of information. The provision provides flexibility for these
criteria and limitations to be set out in either the agreement, or the domestic law of the
foreign country, or both, in order for the requirement to be met.
88. The decision to issue a statutory requirements certificate will be made personally by
the Attorney-General, and involves consideration of major political issues and matters that
have significant capacity to affect Australia's relationships with other countries. Policy
decisions of a high political content were identified by the Administrative Review Council in
its publication 'What decisions should be subject to merits review?' as being unsuitable for
merits review.
Copy of certificate to be given to the Chair of the Joint Standing Committee on Treaties
89. Subclause 3B(6) provides that if the Attorney-General issues a statutory requirements
certificate, the Attorney-General must, as soon as practicable after the certificate is issued,
give a copy of the certificate to the Chair of JSCOT. This ensures the Chair of JSCOT is
notified, given the important role of JSCOT in reviewing and scrutinising agreements under
25
Australia's domestic treaty-making processes, before an agreement will be set out in the
regulations for the purposes of paragraph 3(1)(b) or (3)(b).
Australia's treaty making process
90. Clause 3C clarifies that nothing in Schedule 1 to the TIA Act is intended to modify or
limit the application of Australia's treaty-making process in relation to a designated
international agreement, including any proposed amendments to, or extensions to the duration
of, a designated international agreement. This reflects that, as designated international
agreements are treaties to which Australia is a party, all designated international agreements,
and actions such as amendments to and extensions of such agreements, will be subject to the
Australian treaty process. In accordance with the treaty process, the text of each agreement
and amendment will be subject to parliamentary scrutiny, including consideration by JSCOT,
and published on the Australian Treaties Library on the AustLII website
(www.austlii.edu.au).
Amendments 52 to 65 Schedule 1, item 43
91. Amendments 52 to 65 amend several parts of item 43 to remove references to the
term carriage service and replace it with the new defined term transmission service.
Amendment 66 Schedule 1, item 43, page 27 (after line 23)
92. Amendment 66 inserts new clause 10A to proposed Schedule 1 to the TIA Act.
Clause 10A defines the circumstances in which a provider will be taken to be 'based in' or
'operate in' a foreign country for the purposes of proposed Schedule 1 to the TIA Act. This
definition applies in the context of the new mandatory criterion that must be considered by an
independent decision-maker when issuing an IPO. The new criterion requires that the person
making the application for the order reasonably suspects that the provider to which the order
is to be issued is 'based in', or 'operates in', a foreign country that is a party to the nominated
designated international agreement.
93. The definitions of when a provider will be 'based in' and 'operate in' a country are
intentionally broad given the increasing global nature of the modern communications
environment and the need to be technologically neutral. If the prescribed communications
provider is an individual, they will be taken to be 'based in' a foreign country if such an
individual is ordinarily resident in the foreign country. If the prescribed communications
provider is a body corporate it will be taken to be 'based in' a foreign country if it is
incorporated in the foreign country or has its principal place of business in the foreign
country.
94. A prescribed communications provider is taken to 'operate in' a foreign country if the
provider handles communications, or holds stored communications, or holds
telecommunications data in the foreign country. The terms 'handles' and 'holds' are intended
to take on their ordinary meaning. Both terms are intentionally broad and are designed to be
technology neutral. The breadth of these terms is intended to capture the evolving and
numerous ways in which providers may deal with data captured by a designated international
agreement. 'Handling' communications includes a broad range of dealings with data.
'Handling' is intended to include situations where the provider is not actively doing
something to the communications; for example, 'handling' communications would include
automated processes (such as machine to machine processes) where the provider may be
26
responsible for, in control of, or able to exercise control over the communications or the
movement of the communications. Both 'holding' and 'handling' of data can include where a
provider has physical possession of the data, and also where they have control of the data but
it is otherwise held remotely (for example, where a provider remotely stores data at a remote
data storage facility provided by another company).
Amendments 67 to 69 Schedule 1, page 28
95. Amendments 67 to 69 remove references to the terms carriage service and designated
communications provider and replace them with new defined terms transmission service and
prescribed communications provider respectively.
Amendments 70 to 72 Schedule 1, item 43
96. Amendments 70 to 72 clarify that the Attorney-General may nominate Deputy
Presidents to issue IPOs relating to national security without the need to be satisfied that the
Deputy President is a 'member of the Security Division' of the AAT.
97. Currently, subclause 17(1) provides that the Attorney-General can only nominate a
Deputy President, senior member, or member of the AAT who is 'a member of the Security
Division' of the AAT to issue IPOs relating to national security. Deputy Presidents are able to
exercise powers in all divisions, including the Security Division, by virtue of being appointed
as a presidential member. Practically, this means there may be no Deputy Presidents that
could be said to be 'members' of the Security Division at any given time, although it is
technically possible.
98. The amendments will remove Deputy Presidents from subclause 17(1) and insert new
subclauses 17(3A) and 17(3B) to ensure that Deputy Presidents are capable of being
nominated to issue IPOs relating to national security without needing to be a member of the
Security Division. It will remain the case that members and senior members of the AAT must
be members of the Security Division to be nominated to issue IPOs relating to national
security.
Amendment 73 Schedule 1, item 43, page 31 (after line 30)
99. Amendment 73 inserts new clause 17A into proposed Schedule 1 to the TIA Act.
Clause 17A defines urgent circumstances for the purposes of making an application to an
independent decision maker for an IPO by telephone, and for seeking the Attorney-General's
oral consent to making a telephone application. Knowing precisely what matters are
considered urgent will enable agencies to respond more quickly in situations that necessitate
immediate action. Defining urgent circumstances will also assist agencies to know whether a
matter is not urgent, thereby enabling them to use the appropriate procedures in the Bill to
reflect the circumstances.
100. The definition of urgent circumstances in relation to Parts 2 and 3 of the Bill requires
that the applicant think it necessary to make a telephone application because an imminent risk
of serious harm to a person or substantial damage to property exist, and the IPO is necessary
for the purpose of dealing with that risk, and it is not practicable in the circumstances to make
the application in writing.
27
101. The definition of urgent circumstances in relation to applications to nominated
Security Division members of the AAT in Part 4 of the Bill requires the applicant to think it
necessary to make a telephone application because the delay caused by making a written
application may be prejudicial to security, and it not be practicable in the circumstances to
make the application in writing.
102. The definition of urgent circumstances in relation to seeking the oral consent of the
Attorney-General to making an application for an IPO under Part 4 of the Bill requires the
applicant to think it necessary for the Attorney-General to consent orally because the delay
caused by obtaining written consent may be prejudicial to security, and it not be practicable
in the circumstances for the Attorney-General to consent in writing.
103. What is 'practicable in the circumstances' in relation to clause 17A is not limited to
only include whether it is physically possible to make a written application, but also includes
matters such as whether it is practicable given the time imperative of the urgent
circumstances or the security requirements for dealing with classified documents.
Amendments 74 to 77 Schedule 1, item 43
104. Amendments 74 to 77 amend several items to remove references to the terms
designated communications provider and carriage service and replace them with new defined
terms prescribed communications provider and transmission service respectively.
Amendment 78 Schedule 1, item 43, page 35 (line 14)
105. Amendment 78 amends the note to clause 23 of proposed Schedule 1 to the TIA Act
(concerning the form of application for a law enforcement IPO relating to interception) to
also direct the reader to the definition of urgent circumstances in clause 17A.
Amendments 79 to 92 Schedule 1, item 43
106. Amendments 79 to 92 amend several items to remove references to the terms
designated communications provider and carriage service and replace them with new
defined terms prescribed communications provider and transmission service respectively.
Amendment 93 Schedule 1, item 43, page 40 (after line 21)
107. Amendment 93 inserts new paragraph (ba) in subclause 30(2). This amendment
requires the eligible judge or nominated AAT member when considering an application for
an IPO relating to interception to be satisfied that the person who made the application on
behalf of the agency reasonably suspects that the prescribed communications provider is
based in, or operates in, a foreign country that is a party to the designated international
agreement nominated in the application.
108. This provision is intended to ensure there is a sufficient nexus between the provider to
which an order is issued and a country that is a party to the designated international
agreement. The effect of this provision is that officers making an application on behalf an
agency must consider the connection between a provider and a country party to the
nominated designated international agreement, and may only seek an order if they hold a
reasonable suspicion that the provider operates in, or is based in, that country.
28
109. The intention of the Bill was that IPOs would only be issued to providers with an
appropriate link to a foreign country that is party to the nominated designated international
agreement. This new paragraph seeks to make this intention clear on the face of the
legislation.
110. The effect of this provision restricts the ability to target communications and other
service providers only operating within Australia and that would otherwise be subject to
warrants and authorisations under the TIA Act. To clarify, this would not restrict the ability
to utilise an IPO where both the IPO framework and our domestic framework could apply to
an Australian provider based in or operating in a foreign country.
111. Notably, the provision does not require consideration of whether the provider
exclusively (or even primarily) operates in, or is exclusively based in, the relevant country.
For example, a communications provider incorporated in, and/or providing services primarily
in, one foreign country may store some communications on servers in a different country.
The provider would be taken to be based in the first country and to operate in both countries
for the purposes of the Bill.
112. This provision is not intended to exclude providers with a connection to Australia
from receiving IPOs. There may be circumstances where it is necessary to seek an IPO to
obtain some data from a communications provider that is based in, or that primarily operates
in, Australia if the provider also operates in, or is based in, a foreign country party to a
designated international agreement. For example, an Australian-based communications
service provider may store some communications on a server in a foreign country. If the laws
of that country prohibit the provider from disclosing communications stored in that country, it
may be necessary to seek an IPO to obtain those communications. Because the provider holds
communications in the foreign country, it 'operates in' that country for the purposes of the
Bill and so could be issued an order. The fact that the provider is based in, and also operates
in, Australia is irrelevant. However, where the provider solely is based in, and also operates
in, Australia they would not be captured.
Amendments 94 to 117 Schedule 1, item 43
113. Amendments 94 to 117 amend several items to remove references to the terms
designated communications provider and carriage service and replace them with new defined
terms prescribed communications provider and transmission service respectively.
Amendment 118 Schedule 1, item 43, page 50 (line 9)
114. Amendment 118 amends the note to clause 34 of proposed Schedule 1 to the TIA Act
(concerning the form of application for a law enforcement IPO relating to stored
communications) to also direct the reader to the definition of urgent circumstances in clause
17A.
Amendments 119 to 131 Schedule 1, item 43
115. Amendments 119 to 131 amend several items to remove references to the terms
designated communications provider and carriage service and replace them with new defined
terms prescribed communications provider and transmission service respectively.
Amendment 132 Schedule 1, item 43, page 53 (after line 2)
29
116. Amendment 132 inserts new paragraph (aa) in subclause 39(2). This amendment
requires the issuing authority when considering an application for an IPO relating to stored
communications to be satisfied, amongst other things, that the person who made the
application on behalf of the agency reasonably suspects that the prescribed communications
provider is based in, or operates in, a foreign country that is a party to the designated
international agreement nominated in the application.
Amendments 133 to 140 Schedule 1, item 43
117. Amendments 133 to 140 amend several items to remove references to the terms
designated communications provider and carriage service and replace them with new defined
terms prescribed communications provider and transmission service respectively.
Amendment 141 Schedule 1, item 43, page 57 (line 25)
118. Amendment 141 amends the note to clause 43 of proposed Schedule 1 to the TIA Act
(concerning the form of application for a law enforcement IPO relating to
telecommunications data) to also direct the reader to the definition of urgent circumstances in
clause 17A.
Amendments 142 to 157 Schedule 1, item 43
119. Amendments 142 to 157 amend several items to remove references to the terms
designated communications provider and carriage service and replace them with new defined
terms prescribed communications provider and transmission service respectively.
Amendment 158 Schedule 1, item 43, page 60 (after line 23)
120. Amendment 158 inserts new paragraph (aa) in subclause 48(2). This amendment
requires the issuing authority when considering an application for an IPO relating to
telecommunications data to be satisfied, amongst other things, that the person who made the
application on behalf of the agency reasonably suspects that the prescribed communications
provider is based in, or operates in, a foreign country that is a party to the designated
international agreement nominated in the application.
Amendments 159 to 170 Schedule 1, item 43
121. Amendments 159 to 170 amend several items to remove references to the terms
designated communications provider and carriage service and replace them with new defined
terms prescribed communications provider and transmission service respectively.
Amendment 171 Schedule 1, item 43, page 65 (line 32)
122. Amendment 171 amends the note to clause 53 of proposed Schedule 1 to the TIA Act
(concerning the form of application for a control order IPO relating to interception) to
also direct the reader to the definition of urgent circumstances in clause 17A.
Amendments 172 to 185 Schedule 1, item 43
123. Amendments 172 to 185 amend several items to remove references to the terms
designated communications provider and carriage service and replace them with new defined
terms prescribed communications provider and transmission service respectively.
30
Amendment 186 Schedule 1, item 43, page 71 (after line 2)
124. Amendment 186 inserts new paragraph (ba) in subclause 60(2). This amendment
requires the eligible judge or nominated AAT member when considering an application for a
control order IPO relating to interception to be satisfied, amongst other things, that the person
who made the application on behalf of the agency reasonably suspects that the prescribed
communications provider is based in, or operates in, a foreign country that is a party to the
designated international agreement nominated in the application.
Amendments 187 to 212 Schedule 1, item 43
125. Amendments 187 to 212 amend several items to remove references to the terms
designated communications provider and carriage service and replace them with new defined
terms prescribed communications provider and transmission service respectively.
Amendment 213 Schedule 1, item 43, page 83 (line 23)
126. Amendment 213 amends the note to clause 64 of proposed Schedule 1 to the TIA Act
(concerning the form of application for a control order IPO relating to stored
communications) to also direct the reader to the definition of urgent circumstances in
clause 17A.
Amendments 214 to 226 Schedule 1, item 43
127. Amendments 214 to 226 amend several items to remove references to the terms
designated communications provider and carriage service and replace them with new
defined terms prescribed communications provider and transmission service respectively.
Amendment 227 Schedule 1, item 43, page 86 (after line 22)
128. Amendment 227 inserts new paragraph (ba) in subclause 69(2). This amendment
requires the issuing authority when considering an application for a control order IPO relating
to stored communications to be satisfied, amongst other things, that the person who made the
application on behalf of the agency reasonably suspects that the prescribed communications
provider is based in, or operates in, a foreign country that is a party to the designated
international agreement nominated in the application.
Amendments 228 to 235 Schedule 1, item 43
129. Amendments 228 to 235 amend several items to remove references to the terms
designated communications provider and carriage service and replace them with new defined
terms prescribed communications provider and transmission service respectively.
Amendment 236 Schedule 1, item 43, page 92 (line 11)
130. Amendment 236 amends the note to clause 73 of proposed Schedule 1 to the TIA Act
(concerning the form of application for a control order IPO relating to telecommunications
data) to also direct the reader to the definition of urgent circumstances in clause 17A.
31
Amendments 237 to 252 Schedule 1, item 43
131. Amendments 237 to 252 amend several items to remove references to the terms
designated communications provider and carriage service and replace them with new defined
terms prescribed communications provider and transmission service respectively.
Amendment 253 Schedule 1, item 43, page 95 (after line 13)
132. Amendment 253 inserts new paragraph (ba) in subclause 78(2). This amendment
requires the issuing authority when considering an application for a control order IPO relating
to telecommunications data to be satisfied, amongst other things, that the person who made
the application on behalf of the agency reasonably suspects that the prescribed
communications provider is based in, or operates in, a foreign country that is a party to the
designated international agreement nominated in the application.
Amendments 254 to 265 Schedule 1, item 43
133. Amendments 254 to 265 amend several items to remove references to the terms
designated communications provider and designated communications provider and replace
them with new defined terms prescribed communications provider and transmission service
respectively.
Amendments 266 and 267 Schedule 1, item 43
134. Amendments 266 and 267 amend subclauses 83(3) and (4) to replace references to
'ASIO employee' with references to 'senior position-holders'. The effect of this is that the
Director-General of Security may only authorise senior position-holders (as defined in
proposed Schedule 1 to the TIA Act), or classes of senior position-holders, to make an
application for a national security IPO relating to interception on behalf of ASIO.
Amendments 268 to 270 Schedule 1, item 43
135. Amendments 268 to 270 amend several parts of item 43 to remove references to the
term carriage service and replace it with the new defined term transmission service.
Amendment 271 Schedule 1, item 43, page 103 (after line 16)
136. Amendment 271 inserts a note after subclause 83(9) of proposed Schedule 1 to the
TIA Act (concerning requests for oral consent by the Attorney-General for ASIO to make an
application for a national security IPO relating to interception) to direct the reader to the
definition of urgent circumstances in clause 17A.
Amendment 272 Schedule 1, item 43, page 103 (before line 17)
137. Amendment 272 inserts new subclause 83(9A) into proposed Schedule 1 to the TIA
Act. Subclause 83(9A) applies where a person requests the Attorney-General consent orally
to making an application for a national security IPO relating to interception on behalf of
ASIO. Subclause 83(9A) provides that, at the time of seeking the Attorney-General's oral
consent, the person must inform the Attorney-General of the particulars of the urgent
circumstances because of which the person thought it necessary for the Attorney-General to
consent orally.
32
138. The intention of subclause 83(9A) is to ensure the Attorney-General is apprised of the
particulars of the urgent circumstances necessitating the oral consent at the time the request
for consent is made, as well as requiring this information in a written report pursuant to
subclause 83(10) within 3 working days after consent has been given.
Amendment 273 Schedule 1, item 43, page 104 (line 9)
139. Amendment 273 amends the note to clause 84 of proposed Schedule 1 to the TIA Act
(concerning the form of application for a national security IPO relating to interception) to
also direct the reader to the definition of urgent circumstances in clause 17A.
Amendments 274 to 283 Schedule 1, item 43
140. Amendments 274 to 283 amend several parts of item 43 to remove references to the
terms carriage service and designated communications provider and replace them with new
defined terms transmission service and prescribed communications provider respectively.
Amendments 284 Schedule 1, item 43, page 107 (after line 12)
141. Amendment 284 inserts new paragraph (ba) in subclause 89(2). This amendment
requires the nominated AAT Security Division member when considering an application for a
national security IPO relating to interception to be satisfied, amongst other things, that the
person who made the application on behalf of ASIO reasonably suspects that the prescribed
communications provider is based in, or operates in, a foreign country that is a party to the
designated international agreement nominated in the application.
Amendments 285 to 306 Schedule 1, item 43
142. Amendments 285 to 306 amend several parts of item 43 to remove references to the
terms carriage service and designated communications provider and replace them with new
defined terms transmission service and prescribed communications provider respectively.
Amendments 307 to 308 Schedule 1, item 43, page 115
143. Amendments 307 and 308 amend subclauses 92(3) and (4) to replace references to
'ASIO employee' with references to 'senior position-holders'. The effect of this is that the
Director-General of Security may only authorise senior position-holders (as defined in
proposed Schedule 1 to the TIA Act), or classes of senior position-holders, to make an
application for a national security IPO relating to stored communications on behalf of ASIO.
144. This amendment seeks to ensure that only ASIO employees of appropriate seniority
can be authorised to apply for these kinds of national security IPOs on ASIO's behalf.
Amendment 309 Schedule 1, item 43, page 116 (after line 21)
145. Amendment 309 inserts a note after subclause 92(8) of proposed Schedule 1 to the
TIA Act (concerning requests for oral consent by the Attorney-General for ASIO to make an
application for a national security IPO relating to stored communications) to direct the reader
to the definition of urgent circumstances in clause 17A.
33
Amendment 310 Schedule 1, item 43, page 116 (before line 22)
146. Amendment 310 inserts new subclause 92(8A) into proposed Schedule 1 to the TIA
Act. Subclause 92(8A) applies where a person requests the Attorney-General consent orally
to making an application for a national security IPO relating to stored communications on
behalf of ASIO. Subclause 92(8A) provides that, at the time of seeking the Attorney-
General's oral consent, the person must inform the Attorney-General of the particulars of the
urgent circumstances because of which the person thought it necessary for the Attorney-
General to consent orally.
147. The intention of subclause 92(8A) is to ensure the Attorney-General is apprised of the
particulars of the urgent circumstances necessitating the oral consent at the time the request
for consent is made, as well as requiring this information in a written report pursuant to
subclause 92(9) within 3 working days after consent has been given.
Amendment 311 Schedule 1, item 43, page 117 (line 12)
148. Amendment 311 amends the note to clause 93 of proposed Schedule 1 to the TIA Act
(concerning the form of application for a national security IPO relating to stored
communications) to also direct the reader to the definition of urgent circumstances in clause
17A.
Amendment 312 to 324 Schedule 1, item 43
149. Amendments 312 to 324 amend several parts of item 43 to remove references to the
terms carriage service and designated communications provider and replace them with new
defined terms transmission service and prescribed communications provider respectively.
Amendment 325 Schedule 1, item 43, page 120 (after line 12)
150. Amendment 325 inserts new paragraph (ba) in subclause 98(2). This amendment
requires the nominated AAT Security Division member when considering an application for a
national security IPO relating to stored communications to be satisfied, amongst other things,
that the person who made the application on behalf of ASIO reasonably suspects that the
prescribed communications provider is based in, or operates in, a foreign country that is a
party to the designated international agreement nominated in the application.
Amendment 326 to 333 Schedule 1, item 43
151. Amendments 326 to 333 amend several parts of item 43 to remove references to the
terms carriage service and designated communications provider and replace them with new
defined terms transmission service and prescribed communications provider respectively.
Amendments 334 to 335 Schedule 1, item 43, page 124
152. Amendments 334 and 335 amend subclauses 101(3) and (4) to replace references to
'ASIO employee' with references to 'eligible position-holders'. The effect of this is that the
Director-General of Security may only authorise eligible position-holders (as defined in
proposed Schedule 1 to the TIA Act), or classes of eligible position-holders, to make an
application for a national security IPO relating to telecommunications data on behalf of
ASIO.
34
153. This amendment seeks to ensure that only ASIO employees of appropriate seniority
can be authorised to apply for these kinds of national security IPOs on ASIO's behalf.
Amendment 336 Schedule 1, item 43, page 124 (line 30)
154. Amendment 336 amends the note to clause 102 of proposed Schedule 1 to the TIA
Act (concerning the form of application for a national security IPO relating to
telecommunications data) to also direct the reader to the definition of urgent circumstances in
clause 17A.
Amendments 337 to 352 Schedule 1, item 43
155. Amendments 337 to 352 amend several parts of item 43 to remove references to the
terms carriage service and designated communications provider and replace them with new
defined terms transmission service and prescribed communications provider respectively.
Amendment 353 Schedule 1, item 43, page 127 (after line 32)
156. Amendment 353 inserts new paragraph (aa) in subclause 107(2). This amendment
requires the nominated AAT Security Division member when considering an application for a
national security IPO relating to telecommunications data to be satisfied, amongst other
things, that the person who made the application on behalf of ASIO reasonably suspects that
the prescribed communications provider is based in, or operates in, a foreign country that is a
party to the designated international agreement nominated in the application.
Amendments 354 to 424 Schedule 1, item 43
157. Amendments 354 to 424 amend several parts of item 43 to remove references to the
terms carriage service and designated communications provider and replace them with new
defined terms transmission service and prescribed communications provider respectively
Amendment 425 Schedule 1, item 43, page 155 (after line 3)
158. Amendment 425 requires the Director-General of Security to cause certain additional
documents associated with national security IPOs to be kept in ASIO's records pursuant to
subclause 135(1) of proposed Schedule 1 to the TIA Act. Keeping these documents in
ASIO's records will facilitate effective oversight of ASIO's use of the IPO framework by the
IGIS. The additional documents to be retained include several documents relating to the
Attorney-General's consent for ASIO to apply for a national security IPO. The amendment
also provides flexibility by requiring the Director-General of Security to cause to be kept a
copy of a document of a kind specified in a written agreement between the Director-General
of Security and the IGIS. It would not be appropriate for a written agreement of this kind to
be listed on the Federal Register of Legislation, as the kinds of documents to be kept may
relate to information sensitive to Australia's national security.
159. These amendments are intended to facilitate the oversight role of the IGIS and
identify the minimum kinds of records to be kept by ASIO. However, the amendments do not
affect ASIO's other record keeping requirements (such as those in the Archives Act 1983)
which may require different or similar records to be kept.
35
Amendment 426 Schedule 1, item 43, page 155 (lines 19 and 20)
160. Amendment 426 omits paragraph 135(2)(b) and substitutes new paragraph 135(2)(b)
and inserts new paragraph 135(2)(c).
161. This amendment clarifies the length of time for which the Director-General of
Security must cause a copy of a particular document to be kept in ASIO's records under
subclause 135(1). New paragraph 135(2)(b) provides that if the document relation to a
national security IPO that was issued under Part 4 of proposed Schedule 1 to the TIA Act and
information was obtained with the order, the period for which the document must be kept
ends at the later of when 3 years have elapsed since the document came into existence or
when ASIO ceases to retain the information obtained in accordance with the order.
162. New paragraph 135(2)(c) provides that for documents where no information was
obtained with the order, the period for which the document must be kept ends when 3 years
have elapsed since the document came into existence.
Amendment 427 Schedule 1, item 43, page 155 (after line 20)
163. Amendment 427 inserts new subclause 135(3). Subclause 135(3) provides that a
written agreement between the Director-General of Security and the IGIS under paragraph
135(1)(bd) specifying kinds of documents to be retained is not a notifiable or legislative
instrument. It would not be appropriate for a written agreement of this kind to be listed on the
Federal Register of Legislation, as the kinds of documents to be kept may relate to
information otherwise be sensitive to Australia's national security.
Amendment 428 Schedule 1, item 43, page 155
164. Amendment 428 requires the Director-General of Security to cause certain additional
documents relating to telephone applications for national security IPOs to be kept in ASIO's
records pursuant to subclause 136(1) of proposed Schedule 1 to the TIA Act. Keeping these
documents in ASIO's records will facilitate effective oversight of ASIO's use of the IPO
framework by the IGIS. The additional documents to be retained include several documents
relating to the Attorney-General's consent for ASIO to apply for a national security IPO. The
amendment also provides flexibility by requiring the Director-General of Security to cause to
be kept a copy of a document of a kind specified in a written agreement between the
Director-General of Security and the IGIS. It would not be appropriate for a written
agreement of this kind to be listed on the Federal Register of Legislation, as the kinds of
documents to be kept may relate to information sensitive to Australia's national security.
These amendments are intended to facilitate the oversight role of the IGIS and identify the
minimum kinds of records to be kept by ASIO. However, the amendments do not affect
ASIO's other record keeping requirements (such as those in the Archives Act 1983) which
may require different or similar records to be kept.
Amendments 429 to 431 Schedule 1, item 43
165. Amendments 429 to 431 amend several parts of item 43 to remove references to the
term designated communications provider and replace it with the new defined term
prescribed communications provider.
36
Amendment 432 Schedule 1, item 43, page 156 (lines 33 and 34)
166. Amendment 432 omits paragraph 136(2)(b) and substitutes new paragraph 136(2)(b)
and inserts new paragraph 136(2)(c).
167. This amendment amends the length of time for which the Director-General of
Security must cause a copy of a particular document to be kept in ASIO's records under
subclause 136(1). New paragraph 136(2)(b) provides that, if the document relates to a
national security IPO that was issued under Part 4 of this Schedule and information was
obtained with the order, the period for which the document must be kept ends at the later of
when 3 years have elapsed since the document came into existence or when ASIO ceases to
retain the information obtained in accordance with the order.
168. New paragraph 136(2)(c) provides that for documents where no information was
obtained in accordance with an order, the period for which the document must be kept ends
when 3 years have elapsed since the document came into existence.
Amendment 433 Schedule 1, item 43, page 156 (after line 34)
169. Amendment 433 inserts new subclause 136(3). Subclause 136(3) provides that a
written agreement between the Director-General of Security and the IGIS under paragraph
136(1)(bd) specifying kinds of documents to be retained is not a notifiable or legislative
instrument. It would not be appropriate for a written agreement of this kind to be listed on the
Federal Register of Legislation, as the kinds of documents to be kept may relate to
information sensitive to Australia's national security.
Amendments 434 to 445 Schedule 1, item 43
170. Amendments 434 to 445 amend several parts of item 43 to remove references to the
term designated communications provider and replace it with the new defined term
prescribed communications provider.
Amendment 446 Schedule 1, item 43, page 161 (after line 25)
171. Amendment 446 adds new subclause 139(3), which allows an IGIS official to access
the register of IPOs for the purpose of the performance of a function or duty, or the exercise
of a power, by the IGIS official.
Amendments 447 to 450 Schedule 1, item 43
172. Amendments 447 to 450 amend several parts of item 43 to remove references to the
term designated communications provider and replace it with the new defined term
prescribed communications provider.
Amendment 451 Schedule 1, item 43, page 173 (lines 16 and 17)
173. Amendment 451 amends paragraph 153(1)(p) of proposed Schedule 1 to the TIA Act
in relation to permitted uses for protected information for the purposes of clause 153 of
proposed Schedule 1. Revised paragraph 153(1)(p) provides that protected information may
be used, recorded or disclosed for the purposes of the performance of a function or duty, or
the exercise of a power, by an IGIS official. The new paragraph does not require that the
function, duty or power be performed or exercised under the IGIS Act. This reflects that IGIS
37
officials perform functions and duties, and exercise powers, under a range of legislation in
addition to the IGIS Act, such as the Freedom of Information Act 1982 and the ASIO Act.
This amendment has been made to ensure that protected information can be used, recorded
and disclosed for the full range of powers, functions and duties of an IGIS official.
Amendment 452 Schedule 1, item 43, page 173 (lines 19 and 20)
174. Amendment 452 amends paragraph 153(1)(q) of proposed Schedule 1 to the TIA Act
in relation to permitted uses for protected information for the purposes of clause 153 of
proposed Schedule 1. Revised paragraph 153(1)(q) provides that protected information may
be used, recorded or disclosed for the purposes of the performance of a function or duty, or
the exercise of a power, by an Ombudsman official. The new paragraph does not require that
the function, duty or power be performed or exercised under the Ombudsman Act. This
reflects that Ombudsman officials perform functions and duties, and exercise powers, under a
range of legislation in addition to the Ombudsman Act, such as the TIA Act. This amendment
has been made to ensure that protected information can be used, recorded and disclosed for
the full range of powers, functions and duties of an Ombudsman official.
Amendments 453 to 499 Schedule 1, item 43
175. Amendments 453 to 499 amend several items to remove references to the terms
designated communications provider, carrier, carriage service and carriage service provider
and replace them with new defined terms prescribed communications provider, network
entity, transmission service, and transmission service provider respectively.
Amendments 500 to 501 Schedule 1, item 43, page 209
176. Amendments 500 and 501 amend clause 182 of proposed Schedule 1 to the TIA Act,
in relation to specification of international agreements.
177. Amendment 501 inserts new subclause 182(2). This subclause reflects the
requirements in clause 3 (as revised by these amendments) that, if a designated international
agreement is amended by Australia and the foreign country party or parties, then the
agreement as amended is only treated as a designated international agreement once the
English text of the amendment is set out in the regulations and the amendment has entered
into force. This ensure that, where any of the instruments referred to in subclause 182(1)
includes the name of an agreement, there is certainty as to the agreement that instrument
relates to and the validity of that instrument.
Amendment 502 Schedule 1, item 43, page 209
178. Amendment 502 removes a reference to the term designated communications
provider and replaces it with prescribed communications provider.
38
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