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Cybercrime Legislation Amendment Bill 2011

Schedule 1 Preservation regime for stored communications

   

Telecommunications Act 1997

1  After paragraph 313(7)(c)

Insert:

                    (ca)  complying with a domestic preservation notice or a foreign preservation notice that is in force under Part 3-1A of that Act; or

Telecommunications (Interception and Access) Act 1979

2  Subsection 5(1)

Insert:

certifying official , of an issuing agency, means:

                     (a)  if the issuing agency is an enforcement agency or interception agency—a certifying officer of the agency; and

                     (b)  if the issuing agency is the Organisation—a certifying person of the Organisation.

3  Subsection 5(1)

Insert:

domestic preservation notice has the meaning given by subsection 107H(1).

4  Subsection 5(1)

Insert:

foreign preservation notice has the meaning given by subsection 107N(1).

5  Subsection 5(1)

Insert:

historic domestic preservation notice has the meaning given by subparagraph 107H(1)(b)(i).

6  Subsection 5(1) (paragraph (a) of the definition of interception agency )

After “Part 2-6”, insert “, Part 3-1A”.

7  Subsection 5(1) (after paragraph (b) of the definition of interception agency )

Insert:

                   (ba)  for the purposes of Part 3-1A—an enforcement agency that is:

                              (i)  a Commonwealth agency; or

                             (ii)  an eligible authority of a State in relation to which a declaration under section 34 is in force; or

8  Subsection 5(1)

Insert:

issuing agency , in relation to a preservation notice, means the agency that gives the notice.

9  Subsection 5(1)

Insert:

ongoing domestic preservation notice has the meaning given by subparagraph 107H(1)(b)(ii).

10  Subsection 5(1)

Insert:

preservation notice means a domestic preservation notice or a foreign preservation notice.

11  Subsection 5(1)

Insert:

preservation notice information has the meaning given by section 6EAA.

12  Subsection 5(1)

Insert:

preserve , in relation to a stored communication, means maintain the integrity of:

                     (a)  the stored communication; or

                     (b)  a copy of the stored communication.

13  Subsection 5(1)

Insert:

relates :

                     (a)  a stored communication relates to a person only if it is:

                              (i)  a stored communication that the person has made; or

                             (ii)  a stored communication that another person has made and for which the person is the intended recipient; and

                     (b)  a stored communication relates to a telecommunications service only if it has passed over a telecommunications system by way of the telecommunications service.

14  Subsection 5(1)

Insert:

relevant period , for a domestic preservation notice, means:

                     (a)  for an historic domestic preservation notice—the period referred to in subparagraph 107H(1)(b)(i); and

                     (b)  for an ongoing domestic preservation notice—the period referred to in subparagraph 107H(1)(b)(ii).

15  Subsection 5(1)

Insert:

working day means any day except:

                     (a)  a Saturday or a Sunday; or

                     (b)  a day that is a public holiday in any State or Territory.

16  After section 6EA

Insert:

6EAA   Preservation notice information

                   A reference in this Act to preservation notice information is a reference to:

                     (a)  information about any of the following:

                              (i)  the giving of a preservation notice;

                             (ii)  for a foreign preservation notice—the making of a request under section 107P to preserve stored communications covered by the notice;

                            (iii)  the existence or non-existence of a preservation notice;

                            (iv)  the expiry of a preservation notice; or

                     (b)  any other information that is likely to enable the identification of:

                              (i)  the person or telecommunications service specified in a preservation notice; or

                             (ii)  the person or telecommunications service to which a preservation notice relates.

17  Chapter 3 (heading)

Repeal the heading, substitute:

Chapter 3 Preserving and accessing stored communications

18  Before Part 3-1

Insert in Chapter 3:

Part 3-1A Preserving stored communications

Division 1 Outline of this Part

107G   Outline of this Part

This Part establishes a system of preserving certain stored communications that are held by a carrier. The purpose of the preservation is to prevent the communications from being destroyed before they can be accessed under certain warrants issued under this Act.

Under the system, certain agencies can give a preservation notice to a carrier requiring the carrier to preserve all stored communications that the carrier holds that relate to the person or telecommunications service specified in the notice. The carrier will breach its obligations under section 313 of the Telecommunications Act 1997 if it does not comply with the notice.

There are 2 types of preservation notices: domestic preservation notices (which cover stored communications that might relate either to a contravention of certain Australian laws or to security) and foreign preservation notices (which cover stored communications that might relate to a contravention of certain foreign laws).

Division 2 deals with domestic preservation notices. There are 2 kinds of domestic preservation notices:

(a)   historic domestic preservation notices, which cover stored communications held by the carrier on a particular day; and

(b)   ongoing domestic preservation notices, which cover stored communications held by the carrier in a particular 30-day period.

An issuing agency (which is an enforcement agency or the Organisation for an historic domestic preservation notice, and an interception agency or the Organisation for an ongoing domestic preservation notice) can only give a domestic preservation notice if the conditions in section 107J are satisfied. There are certain grounds on which the notice must be revoked (see section 107L).

Division 3 deals with foreign preservation notices. Foreign preservation notices, like historic domestic preservation notices, cover stored communications held by the carrier on a particular day. Only the Australian Federal Police can give a foreign preservation notice to a carrier and it can only do so if a foreign country has made a request for the preservation in accordance with section 107P. There are certain grounds on which the notice must be revoked (see section 107R).

Division 4 has miscellaneous provisions relating to both domestic and foreign preservation notices (such as provisions about the giving of evidentiary certificates by carriers and issuing agencies).

The Ombudsman has functions in relation to preservation notices given by issuing agencies (other than the Organisation) and the Inspector-General of Intelligence and Security has functions in relation to preservation notices given by the Organisation.

Division 2 Domestic preservation notices

107H   Domestic preservation notices

             (1)  An issuing agency may give a carrier a written notice (a domestic preservation notice ) requiring the carrier to preserve, while the notice is in force, all stored communications that:

                     (a)  relate to the person or telecommunications service specified in the notice; and

                     (b)  the carrier holds at any time during:

                              (i)  the period that starts at the time the carrier receives the notice and ends at the end of the day the carrier receives the notice (in which case the notice is an historic domestic preservation notice ); or

                             (ii)  the period that starts at the time the carrier receives the notice and ends at the end of the 29th day after the day the carrier receives the notice (in which case the notice is an ongoing domestic preservation notice ).

             (2)  However, the agency can only give the notice if the conditions in subsection 107J(1) or (2) are satisfied.

             (3)  In the notice, the agency can only specify:

                     (a)  one person; or

                     (b)  one or more telecommunications services; or

                     (c)  one person and one or more telecommunications services.

107J   Conditions for giving domestic preservation notices

Notices given by enforcement agencies or interception agencies

             (1)  A domestic preservation notice may be given under subsection 107H(1) if:

                     (a)  the issuing agency is:

                              (i)  for an historic domestic preservation notice—an enforcement agency; and

                             (ii)  for an ongoing domestic preservation notice—an interception agency; and

                     (b)  the agency is investigating a serious contravention; and

                     (c)  the agency considers that there are reasonable grounds for suspecting that, in the relevant period for the notice, there are stored communications in existence, or stored communications might come into existence, that:

                              (i)  might assist in connection with the investigation; and

                             (ii)  relate to the person or telecommunications service specified in the notice; and

                     (d)  the agency intends that if, at a later time, the agency considers that the stored communications would be likely to assist in connection with the investigation, then the agency will apply for a Part 2-5 warrant or a stored communications warrant to access those communications; and

                     (e)  for an ongoing domestic preservation notice—there is not another ongoing domestic preservation notice in force that:

                              (i)  was given by the agency to the same carrier; and

                             (ii)  specifies the same person or telecommunications service.

Notices given by the Organisation

             (2)  A domestic preservation notice may be given under subsection 107H(1) if:

                     (a)  the issuing agency is the Organisation; and

                     (b)  the Organisation considers that there are reasonable grounds for suspecting that, in the relevant period for the notice, there are stored communications in existence, or stored communications might come into existence, that:

                              (i)  might assist the Organisation in carrying out its function of obtaining intelligence relating to security; and

                             (ii)  relate to the person or telecommunications service specified in the notice; and

                     (c)  the Organisation intends that if, at a later time, the Organisation considers that the stored communications would be likely to assist in carrying out that function, then the Director-General of Security will request a Part 2-2 warrant to access those communications; and

                     (d)  for an ongoing domestic preservation notice—there is not another ongoing domestic preservation notice in force that:

                              (i)  was given by the Organisation to the same carrier; and

                             (ii)  specifies the same person or telecommunications service.

107K   When a domestic preservation notice is in force

                   A domestic preservation notice:

                     (a)  comes into force when the carrier receives it; and

                     (b)  ceases to be in force at the earliest of the following times:

                              (i)  the end of the period of 90 days, starting on the day the carrier receives it;

                             (ii)  if the notice is revoked under section 107L—when the carrier receives notice of the revocation;

                            (iii)  if a Part 2-5 warrant or stored communications warrant authorising access to the stored communications covered by the notice is issued in relation to the issuing agency—when the warrant ceases to be in force;

                            (iv)  if a Part 2-2 warrant authorising access to the stored communications covered by the notice is issued in relation to the issuing agency—the end of the period of 5 days after the day the warrant was issued.

107L   Revoking a domestic preservation notice

Discretionary revocation

             (1)  An issuing agency that has given a domestic preservation notice may revoke the notice at any time.

Mandatory revocation

             (2)  An issuing agency that has given a domestic preservation notice must revoke the notice if:

                     (a)  if the issuing agency is an enforcement agency or interception agency:

                              (i)  the condition in paragraph 107J(1)(b) or (c) is no longer satisfied; or

                             (ii)  the agency decides not to apply for a Part 2-5 warrant or stored communications warrant to access the stored communications covered by the notice; or

                     (b)  if the issuing agency is the Organisation:

                              (i)  the condition in paragraph 107J(2)(b) is no longer satisfied; or

                             (ii)  the Organisation is satisfied that the Director-General of Security will not request a Part 2-2 warrant to access the stored communications covered by the notice.

Revocation effected by giving revocation notice

             (3)  A domestic preservation notice is revoked by the issuing agency giving the carrier to whom it was given written notice of the revocation.

107M   Persons who act on the issuing agency’s behalf

Historic domestic preservation notices

             (1)  An historic domestic preservation notice may only be given or revoked on behalf of an issuing agency by:

                     (a)  if the issuing agency is an enforcement agency—a person who may, under section 110, apply on the agency’s behalf for a stored communications warrant to access the stored communications covered by the notice; and

                     (b)  if the issuing agency is the Organisation—a certifying person.

Ongoing domestic preservation notices

             (2)  An ongoing domestic preservation notice may only be given on behalf of an issuing agency by:

                     (a)  if the issuing agency is an interception agency—an authorised officer of the agency; and

                     (b)  if the issuing agency is the Organisation—the Director-General of Security.

             (3)  An ongoing domestic preservation notice may only be revoked on behalf of an issuing agency by:

                     (a)  if the issuing agency is an interception agency—an authorised officer of the agency; and

                     (b)  if the issuing agency is the Organisation—a certifying person.

Division 3 Foreign preservation notices

107N   When a foreign preservation notice can be given

             (1)  If the Australian Federal Police receives a request in accordance with section 107P, the Australian Federal Police must give the carrier to which the request relates a written notice (a foreign preservation notice ) requiring the carrier to preserve, while the notice is in force, all stored communications that:

                     (a)  relate to the person or telecommunications service specified in the notice; and

                     (b)  the carrier holds at any time during the period that starts at the time the carrier receives the notice and ends at the end of the day the carrier receives the notice.

             (2)  In the notice, the Australian Federal Police can only specify:

                     (a)  one person; or

                     (b)  one or more telecommunications services; or

                     (c)  one person and one or more telecommunications services.

107P   Condition for giving a foreign preservation notice

             (1)  If, under paragraph 15B(d) of the Mutual Assistance in Criminal Matters Act 1987 , a foreign country intends to request the Attorney-General to arrange for access to stored communications that:

                     (a)  relate to a specified person or specified telecommunications service; and

                     (b)  are held by a carrier; and

                     (c)  are relevant to an investigation, or investigative proceeding, relating to a criminal matter involving a serious foreign contravention;

then the foreign country may request the Australian Federal Police to arrange for the preservation of those stored communications.

             (2)  The request to the Australian Federal Police must:

                     (a)  be in writing; and

                     (b)  specify the name of the authority concerned with the criminal matter; and

                     (c)  specify the serious foreign contravention that is the subject of the investigation or investigative proceeding; and

                     (d)  specify information identifying the stored communications to be preserved and the relationship between those communications and the serious foreign contravention; and

                     (e)  specify any information the foreign country has that identifies the carrier that holds the stored communications; and

                      (f)  if the stored communications relate to a specified person—specify any information the foreign country has that identifies the telecommunications service to which the stored communications relate; and

                     (g)  specify the reasons why the stored communications need to be preserved; and

                     (h)  specify that the foreign country intends to make a request under paragraph 15B(d) of the Mutual Assistance in Criminal Matters Act 1987 to access the stored communications.

107Q   When a foreign preservation notice is in force

                   A foreign preservation notice:

                     (a)  comes into force when the carrier receives it; and

                     (b)  ceases to be in force at the earlier of the following times:

                              (i)  if the notice is revoked under section 107R—when the carrier receives notice of the revocation;

                             (ii)  if a stored communications warrant authorising access to the stored communications covered by the notice is issued after the Attorney-General has given an authorisation in relation to the warrant under section 15B of the Mutual Assistance in Criminal Matters Act 1987 —when the warrant ceases to be in force.

107R   Revoking a foreign preservation notice

             (1)  If:

                     (a)  a foreign country makes a request under section 107P to preserve stored communications that are held by a carrier; and

                     (b)  in response to the request, the Australian Federal Police gives a foreign preservation notice to the carrier in relation to those stored communications under subsection 107N(1); and

                     (c)  during the period of 180 days starting on the day the carrier was given the notice, the foreign country did not make a request to the Attorney-General under paragraph 15B(d) of the Mutual Assistance in Criminal Matters Act 1987 to arrange for access to those communications;

then the Australian Federal Police must, by the third working day after the end of that period, revoke the preservation notice by giving the carrier to whom it was given written notice of the revocation.

             (2)  If:

                     (a)  a foreign country makes a request under section 107P to preserve stored communications that are held by a carrier; and

                     (b)  in response to the request, the Australian Federal Police gives a foreign preservation notice to the carrier in relation to those stored communications under subsection 107N(1); and

                     (c)  the foreign country makes a request to the Attorney-General under paragraph 15B(d) of the Mutual Assistance in Criminal Matters Act 1987 to arrange for access to those communications; and

                     (d)  the Attorney-General refuses that request;

then the Australian Federal Police must, by the third working day after it is notified of the refusal, revoke the preservation notice by giving the carrier to whom it was given written notice of the revocation.

             (3)  If:

                     (a)  a foreign country makes a request under section 107P to preserve stored communications that are held by a carrier; and

                     (b)  in response to the request, the Australian Federal Police gives a foreign preservation notice to the carrier in relation to those stored communications under subsection 107N(1); and

                     (c)  the foreign country withdraws the request;

then the Australian Federal Police must, by the third working day after it is notified of the withdrawal, revoke the preservation notice by giving the carrier to whom it was given written notice of the revocation.

107S   Persons who act on the AFP’s behalf

                   A foreign preservation notice must be given or revoked on behalf of the Australian Federal Police by an authorised officer of the Australian Federal Police.

Division 4 Provisions relating to preservation notices

107T   Evidentiary certificates relating to actions by carriers

             (1)  The following:

                     (a)  the Managing Director of a carrier or a body corporate of which the carrier is a subsidiary;

                     (b)  the secretary of a carrier or a body corporate of which the carrier is a subsidiary;

                     (c)  an employee of a carrier authorised in writing for the purposes of this paragraph by a person referred to in paragraph (a) or (b);

may issue a written certificate signed by him or her setting out such facts as he or she considers relevant with respect to acts or things done by, or in relation to, employees of the carrier in order to comply with a preservation notice.

             (2)  A document purporting to be a certificate issued under subsection (1) and purporting to be signed by a person referred to in paragraph (a), (b) or (c) of that subsection:

                     (a)  is to be received in evidence in an exempt proceeding without further proof; and

                     (b)  in an exempt proceeding, is conclusive evidence of the matters stated in the document.

             (3)  For the purposes of this section, the question whether a body corporate is a subsidiary of another body corporate is to be determined in the same manner as the question is determined under the Corporations Act 2001 .

107U   Evidentiary certificates relating to actions by issuing agencies

             (1)  A certifying official of an issuing agency may issue a written certificate signed by him or her setting out such facts as he or she considers relevant with respect to anything done by an officer or staff member of the agency in connection with a preservation notice.

             (2)  A document purporting to be a certificate issued under this section by a certifying official of an issuing agency and purporting to be signed by him or her:

                     (a)  is to be received in evidence in an exempt proceeding without further proof; and

                     (b)  in an exempt proceeding, is prima facie evidence of the matters stated in the document.

107V   Certified copies of preservation notices

                   A document certified in writing by a certifying official of an issuing agency to be a true copy of a preservation notice is to be received in evidence in an exempt proceeding as if it were the original preservation notice.

107W   How notices are to be given to carriers

                   For the purposes of this Part:

                     (a)  a preservation notice; or

                     (b)  a revocation notice under section 107L or 107R;

may only be given to a carrier by giving it to an authorised representative of the carrier.

19  Before subparagraph 108(2)(f)(i)

Insert:

                            (ia)  preservation notices; or

20  Division 1 of Part 3-4 (heading)

Repeal the heading, substitute:

Division 1 Prohibition on dealing with accessed information etc.

21  After subparagraph 133(1)(b)(ii)

Insert:

                           (iia)  preservation notice information; or

Note:       The heading to section 133 is altered by omitting “ or stored communications warrant information ” and substituting “ etc. ”.

22  Section 134

Repeal the section, substitute:

134   Dealing in preservation notice information or stored communications warrant information

                   A person may, for the purposes of Part 3-1A, 3-2, 3-3, 3-5 or 3-6:

                     (a)  communicate preservation notice information or stored communications warrant information to another person; or

                     (b)  make use of preservation notice information or stored communications warrant information; or

                     (c)  make a record of preservation notice information or stored communications warrant information; or

                     (d)  give preservation notice information or stored communications warrant information in evidence in a proceeding.

23  After subsection 135(4)

Insert:

Preservation notice information

          (4A)  An employee of a carrier may, in the performance of his or her duties as such an employee, communicate or make use of, or cause to be communicated, preservation notice information if:

                     (a)  the employee does so in the performance of his or her duties as such an employee; and

                     (b)  the information is reasonably necessary to enable the carrier to comply with the preservation notice.

          (4B)  An employee of a carrier may communicate or cause to be communicated to another carrier, or to an employee of another carrier, preservation notice information if the information is reasonably necessary to enable the carrier to comply with the preservation notice.

24  After paragraphs 136(1)(a), 137(1)(a), 138(1)(a), 138(2)(a) and 139(1)(a)

Insert:

                    (aa)  preservation notice information;

25  Subsection 146(2)

After “give”, insert “preservation notice information or”.

26  Part 3-5 (heading)

Repeal the heading, substitute:

Part 3-5 Keeping and inspection of preservation notice and access records

27  Division 1 of Part 3-5 (heading)

Repeal the heading, substitute:

Division 1 Keeping preservation notice and access records

28  Before section 151

Insert into Division 1 of Part 3-5:

150A   Enforcement agencies to keep documents connected with giving preservation notices

                   The chief officer of an enforcement agency must cause to be kept in the agency’s records:

                     (a)  each preservation notice given by the agency; and

                     (b)  each instrument revoking such a notice; and

                     (c)  a copy of each certificate issued under subsection 107U(1) by a certifying officer of the agency.

29  Division 2 of Part 3-5 (heading)

Repeal the heading, substitute:

Division 2 Inspection of preservation notice and access records by Ombudsman

30  Paragraph 152(a)

After “150”, insert “, 150A”.

31  Subsection 153(3)

After “150”, insert “, 150A”.

32  At the end of Part 3-5

Add:

Division 3 Inspection of preservation notice records by Inspector-General of Intelligence and Security

158A   Functions of the Inspector-General of Intelligence and Security

             (1)  Under the Inspector-General of Intelligence and Security Act 1986 , the Inspector-General of Intelligence and Security has functions in relation to preservation notices given by the Organisation.

             (2)  In particular, the Inspector-General of Intelligence and Security has the function of:

                     (a)  inquiring into any matter that relates to compliance by the Organisation with this Act (see subparagraph 8(1)(a)(i) of that Act); and

                     (b)  conducting such inspections of the Organisation as the Inspector-General considers appropriate for the purpose of giving effect to the objects of that Act (see section 9A of that Act).

33  After section 161

Insert:

161A   Report to contain information about preservation notices

Domestic preservation notices

             (1)  The report must set out, for each enforcement agency:

                     (a)  the relevant statistics about domestic preservation notices that were given by the agency during that year; and

                     (b)  the relevant statistics about revocation notices given by the agency under section 107L during that year.

Foreign preservation notices

             (2)  If the enforcement agency is the Australian Federal Police, the report must also set out:

                     (a)  the relevant statistics about foreign preservation notices that were given by the agency during that year; and

                     (b)  the relevant statistics about revocation notices given by the agency under section 107R during that year.