Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Cybercrime Legislation Amendment Bill 2011

Schedule 2 Amendments relating to Mutual Assistance

Part 1 Stored communications

Mutual Assistance in Criminal Matters Act 1987

1  Subsection 3(1)

Insert:

carrier has the same meaning as in the Telecommunications (Interception and Access) Act 1979 .

2  Subsection 3(1)

Insert:

investigative proceeding means a proceeding covered by paragraph (a) or (b) of the definition of proceeding .

3  Subsection 3(1)

Insert:

stored communication has the same meaning as in the Telecommunications (Interception and Access) Act 1979 .

4  After Part III

Insert:

Part IIIA Assistance in relation to stored communications

   

15B   Requests by foreign countries for stored communications

                   The Attorney-General may, in his or her discretion, authorise the Australian Federal Police or a police force or police service of a State, in writing, to apply for a stored communications warrant under section 110 of the Telecommunications (Interception and Access) Act 1979 if the Attorney-General is satisfied that:

                     (a)  an investigation, or investigative proceeding, relating to a criminal matter involving an offence against the law of a foreign country (the requesting country ) has commenced in the requesting country; and

                     (b)  the offence to which the investigation, or investigative proceeding, relates is punishable by a maximum penalty of:

                              (i)  imprisonment for 3 years or more, imprisonment for life or the death penalty; or

                             (ii)  a fine of an amount that is at least equivalent to 900 penalty units; and

                     (c)  there are reasonable grounds to believe that stored communications relevant to the investigation, or investigative proceeding, are held by a carrier; and

                     (d)  the requesting country has requested the Attorney-General to arrange for access to the stored communications.

Note:          Information obtained under the warrant may only be communicated to the requesting country on certain conditions: see subsection 142A(1) of the Telecommunications (Interception and Access) Act 1979 .

Telecommunications (Interception and Access) Act 1979

5  Subsection 5(1)

Insert:

investigative proceeding has the same meaning as in the Mutual Assistance in Criminal Matters Act 1987.

6  Subsection 5(1)

Insert:

mutual assistance application means an application for a stored communications warrant made as a result of an authorisation under section 15B of the Mutual Assistance in Criminal Matters Act 1987.

7  After section 5E

Insert:

5EA   Serious foreign contraventions

                   For the purposes of this Act, a serious foreign contravention is a contravention of a law of a foreign country that is punishable by a maximum penalty of:

                     (a)  imprisonment for 3 years or more, imprisonment for life or the death penalty; or

                     (b)  a fine of an amount that is at least equivalent to 900 penalty units.

8  Paragraph 6H(c)

Omit “paragraph 116(1)(d)”, substitute “subparagraph 116(1)(d)(i) or (ii), as the case requires”.

9  Paragraph 116(1)(d)

Omit all the words after “with”, substitute:

                            : (i)  in the case of an application other than a mutual assistance application—the investigation by the agency of a serious contravention in which the person is involved (including as a victim of the serious contravention); or

                             (ii)  in the case of a mutual assistance application—the investigation or investigative proceeding, by the foreign country to which the application relates, of a serious foreign contravention to which the application relates and in which the person is involved (including as a victim of the serious foreign contravention); and

10  Paragraph 116(1)(e)

After “subsection (2)”, insert “or (2A) (as the case requires)”.

11  Subsection 116(2)

Omit “The matters”, substitute “In the case of an application other than a mutual assistance application, the matters”.

12  Paragraph 116(2)(c)

Omit “paragraph (1)(d)”, substitute “subparagraph (1)(d)(i)”.

13  After subsection 116(2)

Insert:

          (2A)  In the case of a mutual assistance application, the matters to which the issuing authority must have regard are:

                     (a)  how much the privacy of any person or persons would be likely to be interfered with by accessing those stored communications under a stored communications warrant; and

                     (b)  the gravity of the conduct constituting the serious foreign contravention; and

                     (c)  how much the information referred to in subparagraph (1)(d)(ii) would be likely to assist in connection with the investigation, to the extent that this is possible to determine from information obtained from the foreign country to which the application relates.

14  Subsection 116(3)

After “contravention”, insert “or serious foreign contravention, but cannot relate to both a serious contravention and a serious foreign contravention”.

15  Subsection 118(3)

After “contravention”, insert “or serious foreign contravention”.

16  Subsection 118(3)

Omit “paragraph 116(1)(d)”, substitute “subparagraph 116(1)(d)(i) or (ii), as the case may be”.

17  Subsection 139(1)

After “(2)”, insert “or (4A)”.

18  Subsection 139(2)

Omit “The”, substitute “In the case of information obtained by the agency other than through the execution of a warrant issued as a result of a mutual assistance application, the”.

19  After subsection 139(4)

Insert:

          (4A)  In the case of information obtained by the agency through the execution of a warrant issued as a result of a mutual assistance application, the purposes are purposes connected with:

                     (a)  providing the information to the foreign country, or an appropriate authority of the foreign country, to which the application relates; or

                     (b)  the keeping of records by the agency under Part 3-5.

20  After section 142

Insert:

142A   Communicating information obtained as a result of a mutual assistance application to foreign country

             (1)  Despite subsection 139(4A) and section 142, a person may only communicate information, obtained through the execution of a warrant issued as a result of a mutual assistance application, to the foreign country to which the application relates, subject to the following conditions:

                     (a)  that the information will only be used for the purposes for which the foreign country requested the information;

                     (b)  that any document or other thing containing the information will be destroyed when it is no longer required for those purposes;

                     (c)  any other condition determined, in writing, by the Attorney-General.

             (2)  A determination made under paragraph (1)(c) is not a legislative instrument.

21  At the end of subsection 162(1)

Add:

             ; and (c)  the relevant statistics about mutual assistance applications that the agency made during that year; and

                     (d)  for each offence (the foreign offence ) against a law of a foreign country in respect of which a stored communications warrant was issued as a result of a mutual assistance application made by the agency during the year—the offence (if any), under a law of the Commonwealth, or of a State or a Territory, that is of the same nature as, or a substantially similar nature to, the foreign offence.

22  After paragraph 162(2)(b)

Insert:

                   (ba)  the relevant statistics about mutual assistance applications that were made during that year; and

23  At the end of subsection 162(2)

Add:

             ; and (e)  for each offence (the foreign offence ) against a law of a foreign country in respect of which a stored communications warrant was issued as a result of a mutual assistance application made during the year—the offence (if any), under a law of the Commonwealth, or of a State or a Territory, that is of the same nature as, or a substantially similar nature to, the foreign offence.

24  Application of amendments made by this Part

The amendments made by this Part apply in relation to a request by a foreign country that is under consideration on or after the commencement of this item, whether the request was made before or after that commencement.



 

Part 2 Telecommunications data

Mutual Assistance in Criminal Matters Act 1987

25  Subsection 3(1)

Insert:

communication has the same meaning as in the Telecommunications (Interception and Access) Act 1979 .

26  Subsection 3(1)

Insert:

telecommunications system has the same meaning as in the Telecommunications (Interception and Access) Act 1979 .

27  Before Part IV

Insert:

Part IIIB Assistance in relation to telecommunications data

   

15D   Requests by foreign countries for telecommunications data

             (1)  This section applies if:

                     (a)  a foreign country requests the disclosure of specified information or specified documents that come into existence during a specified period; and

                     (b)  the information or documents relate to the fact of a communication passing over a telecommunications system.

             (2)  To avoid doubt, information or documents do not relate to the fact of a communication passing over a telecommunications system:

                     (a)  if the information is the contents or substance of a communication; or

                     (b)  to the extent that the documents contain the contents or substance of a communication.

             (3)  The Attorney-General may authorise the making of an authorisation under section 180B of the Telecommunications (Interception and Access) Act 1979 , of a disclosure of information or documents to which this section applies, if he or she is satisfied that:

                     (a)  an investigation relating to a criminal matter involving an offence against the law of the foreign country has commenced in that country; and

                     (b)  the offence is punishable by imprisonment for 3 years or more, imprisonment for life or the death penalty.

Telecommunications Act 1997

28  Subsection 305(1)

After “Division 4”, insert “or 4A”.

29  Subparagraph 306(1)(b)(ii)

Omit “or subsection 180(3)”, substitute “, subsection 180(3) or section 180A”.

30  Paragraph 306A(1)(b)

After “section 180”, insert “or 180B”.

31  Paragraph 306A(1)(b)

After “subsection 180(2)”, insert “or 180B(2)”.

Telecommunications (Interception and Access) Act 1979

32  Subsection 5(1) (definition of authorised officer )

Repeal the definition, substitute:

authorised officer :

                     (a)  in sections 180A, 180B, 180C and 180D, subsections 184(5) and 185(2) and paragraph 186(1)(ca), means:

                              (i)  the Commissioner of Police; or

                             (ii)  a Deputy Commissioner of Police; or

                            (iii)  a member of the Australian Federal Police who is covered by an authorisation in force under subsection 5AB(1A); and

                     (b)  in any other case, means:

                              (i)  the head (however described) of the enforcement agency or a person acting as that head; or

                             (ii)  a deputy head (however described) of the enforcement agency or a person acting as that deputy head; or

                            (iii)  a person who holds, or is acting in, an office or position in the enforcement agency that is covered by an authorisation in force under subsection 5AB(1).

33  Subsection 5(1)

Insert:

foreign law enforcement agency means:

                     (a)  a police force (however described) of a foreign country; or

                     (b)  any other authority or person responsible for the enforcement of the laws of the foreign country.

34  Subsection 5AB(1)

Omit “paragraph (c)”, substitute “subparagraph (b)(iii)”.

Note:       The following heading to subsection 5AB(1) is inserted “ Authorised officers of an enforcement agency ”.

35  Subsection 5AB(2)

Repeal the subsection, substitute:

Authorised officers of the Australian Federal Police

          (1A)  The Commissioner of Police may authorise, in writing, a senior executive AFP employee who is a member of the Australian Federal Police to be an authorised officer.

             (2)  A copy of an authorisation must be given to the Communications Access Coordinator:

                     (a)  in the case of an authorisation made under subsection (1)—by the head of the enforcement agency; and

                     (b)  in the case of an authorisation made under subsection (1A)—by the Commissioner of Police.

36  Subsection 171(1)

Omit “and 4”, substitute “, 4 and 4A”.

37  Subsection 171(1) (note 1)

Repeal the note, substitute:

Note 1:       Division 3 covers the Organisation. Division 4 covers disclosures for the purposes of Australian enforcement agencies. Division 4A covers disclosures for the purposes of foreign law enforcement.

38  At the end of subsection 171(3)

Add “or 4A”.

39  Section 172

Omit “and 4”, substitute “, 4 and 4A”.

40  Subsection 180(5)

Repeal the subsection.

41  After Division 4 of Part 4-1

Insert:

Division 4A Foreign law enforcement

Subdivision A Primary disclosures

180A   Authorisations for access to existing information or documents—enforcement of the criminal law of a foreign country

Disclosure to the Australian Federal Police

             (1)  Sections 276, 277 and 278 of the Telecommunications Act 1997 do not prevent a disclosure of information or a document if the information or document is covered by an authorisation in force under subsection (2).

             (2)  An authorised officer of the Australian Federal Police may authorise the disclosure of specified information or specified documents that came into existence before the time the person from whom the disclosure is sought receives notification of the authorisation.

Note:          Section 184 deals with notification of authorisations.

             (3)  The authorised officer must not make the authorisation unless he or she is satisfied that the disclosure is reasonably necessary for the enforcement of the criminal law of a foreign country.

Disclosure to a foreign law enforcement agency

             (4)  If specified information or specified documents are disclosed because of an authorisation given under subsection (2), an authorised officer of the Australian Federal Police may authorise the disclosure of the information or documents so disclosed to a foreign law enforcement agency.

             (5)  The authorised officer must not make the authorisation unless he or she is satisfied that:

                     (a)  the disclosure is reasonably necessary for the enforcement of the criminal law of a foreign country; and

                     (b)  the disclosure is appropriate in all the circumstances.

180B   Authorisations for access to prospective information or documents—enforcement of the criminal law of a foreign country

Disclosure to the Australian Federal Police

             (1)  Sections 276, 277 and 278 of the Telecommunications Act 1997 do not prevent a disclosure of information or a document if the information or document is covered by an authorisation in force under subsection (2) of this section.

Prospective authorisation

             (2)  An authorised officer of the Australian Federal Police may authorise the disclosure of specified information or specified documents that come into existence during the period for which the authorisation is in force.

             (3)  The authorised officer must not make the authorisation unless:

                     (a)  the Attorney-General has authorised the making of the authorisation under the Mutual Assistance in Criminal Matters Act 1987 ; and

                     (b)  the authorised officer is satisfied that the disclosure is:

                              (i)  reasonably necessary for the investigation of an offence against a law of a foreign country that is punishable by imprisonment for 3 years or more, imprisonment for life or the death penalty; and

                             (ii)  appropriate in all the circumstances.

             (4)  An authorised officer of the Australian Federal Police must revoke the authorisation if he or she is satisfied that the disclosure is no longer required.

Note:          Section 184 deals with notification of revocations.

             (5)  An authorisation under subsection (2):

                     (a)  comes into force at the time the person from whom the disclosure is sought receives notification of the authorisation; and

                     (b)  ceases to be in force at the time specified in the authorisation, which must not be more than 21 days after the day the authorisation is made, or that period as extended under subsection (6), unless it is revoked earlier.

Note:          Section 184 deals with notification of authorisations.

Extension of prospective authorisation

             (6)  The period for which an authorisation under subsection (2) is in force may be extended once only, by an authorised officer of the Australian Federal Police, if the authorised officer is satisfied that the extension is:

                     (a)  reasonably necessary for the investigation of an offence against a law of a foreign country that is punishable by imprisonment for 3 years or more, imprisonment for life or the death penalty; and

                     (b)  appropriate in all the circumstances.

             (7)  An extension under subsection (6) must not be for more than 21 days from the day of the extension.

Disclosure to a foreign law enforcement agency

             (8)  If specified information or specified documents are disclosed because of an authorisation given under subsection (2), an authorised officer of the Australian Federal Police may authorise the disclosure of the information or documents so disclosed to a foreign law enforcement agency if the authorised officer is satisfied that the disclosure is:

                     (a)  reasonably necessary for the investigation of an offence against a law of a foreign country that is punishable by imprisonment for 3 years or more, imprisonment for life or the death penalty; and

                     (b)  appropriate in all the circumstances.

             (9)  An authorised officer must not make more than one authorisation a day under subsection (8).

Subdivision B Secondary disclosures

180C   Authorisations to disclose information or documents—enforcement of the criminal law of a foreign country

             (1)  If specified information or specified documents are disclosed because of an authorisation given under Division 4, other than because of an authorisation under section 178A (missing persons), an authorised officer of the Australian Federal Police may authorise the disclosure of the information or documents so disclosed to a foreign law enforcement agency.

             (2)  The authorised officer must not make the authorisation unless he or she is satisfied that:

                     (a)  the disclosure is reasonably necessary for the enforcement of the criminal law of a foreign country; and

                     (b)  the disclosure is appropriate in all the circumstances.

180D   Authorisations to disclose information or documents—enforcement of the criminal law

             (1)  If specified information or specified documents are disclosed because of an authorisation given under this Division, an authorised officer of the Australian Federal Police may authorise the following:

                     (a)  the disclosure of the information or documents to the Organisation or an enforcement agency;

                     (b)  the use of the information or documents by the Australian Federal Police.

             (2)  The authorised officer must not make the authorisation unless he or she is satisfied that:

                     (a)  in the case of a disclosure to the Organisation—the disclosure is reasonably necessary for the performance by the Organisation of its functions; and

                     (b)  in the case of a disclosure to an enforcement agency—the disclosure is reasonably necessary:

                              (i)  for the enforcement of the criminal law; or

                             (ii)  for the enforcement of a law imposing a pecuniary penalty; or

                            (iii)  for the protection of the public revenue; and

                     (c)  in the case of a use by the Australian Federal Police—the use is reasonably necessary:

                              (i)  for the enforcement of the criminal law; or

                             (ii)  for the enforcement of a law imposing a pecuniary penalty; or

                            (iii)  for the protection of the public revenue; and

                     (d)  in any case—the disclosure or use is appropriate in all the circumstances.

Subdivision C Conditions of disclosure to foreign country

180E   Disclosing information etc. obtained to foreign country

             (1)  A person must not disclose information or a document in accordance with an authorisation under section 180A, 180B or 180C to a foreign country unless the disclosure is subject to the following conditions:

                     (a)  that the information will only be used for the purposes for which the foreign country requested the information;

                     (b)  that any document or other thing containing the information will be destroyed when it is no longer required for those purposes;

                     (c)  in the case of information or a document disclosed under section 180B—any other condition determined, in writing, by the Attorney-General.

             (2)  A determination made under paragraph (1)(c) is not a legislative instrument.

Division 4B Privacy to be considered when making authorisations

180F   Authorised officers to consider privacy

                   Before making an authorisation under Division 4 or 4A in relation to the disclosure or use of information or documents, the authorised officer considering making the authorisation must have regard to how much the privacy of any person or persons would be likely to be interfered with by the disclosure or use.

42  Paragraph 181(b)

Omit “or 4”, substitute “, 4 or 4A”.

43  Paragraph 182(1)(a)

After “Division 4”, insert “or 4A”.

44  After subsection 182(4)

Insert:

          (4A)  Paragraph (1)(b) does not apply to a disclosure or use of information or a document if the disclosure or use is permitted by section 180C or 180D.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (4A) (see subsection 13.3(3) of the Criminal Code ).

45  Subsection 182(5) (definition of non-missing person information )

After “Division 4”, insert “or 4A”.

46  Paragraph 183(1)(a)

Omit “or 4”, substitute “, 4 or 4A”.

47  At the end of section 184

Add:

Authorised officers of the Australian Federal Police

             (5)  If an authorised officer of the Australian Federal Police makes an authorisation under subsection 180A(2) or 180B(2), or extends the period for which an authorisation is in force under subsection 180B(6), a relevant staff member of the Australian Federal Police must notify the person from whom the disclosure is sought.

             (6)  If, under subsection 180B(4), an authorised officer of the Australian Federal Police revokes an authorisation, a relevant staff member of the Australian Federal Police must notify the person who was notified of the authorisation.

48  Section 185

Before “The”, insert “(1)”.

49  At the end of section 185

Add:

             (2)  The Commissioner of Police must retain an authorisation made under Division 4A of Part 4-1 by an authorised officer of the Australian Federal Police for the period of 3 years beginning on the day the authorisation is made.

50  After paragraph 186(1)(c)

Insert:

                    (ca)  if the enforcement agency is the Australian Federal Police—the number of authorisations made under sections 180A, 180B, 180C and 180D by an authorised officer of the Australian Federal Police during that year; and

51  Application of amendments made by this Part—authorisations

(1)       The amendments made by this Part apply in relation to an authorisation made on or after the commencement of this item.

(2)       To avoid doubt, an authorisation may be made under section 180C of the Telecommunications (Interception and Access) Act 1979 even if an authorisation given under Division 4 (as mentioned in that section) was given before the commencement of this item.

52  Application of amendments made by this Part—requests by foreign countries

The amendments made by this Part apply in relation to a request by a foreign country that is under consideration on or after the commencement of this item, whether the request was made before or after that commencement.

53  Saving of existing authorisations

(1)       Despite the amendment of subsection 5AB(1) of the Telecommunications (Interception and Access) Act 1979 by this Part, any authorisation by the head of an enforcement agency that was in force under that subsection immediately before the commencement of this item continues in force on and after that commencement as if it were an authorisation made under that subsection as in force after that commencement.

(2)       In this item:

enforcement agency has the same meaning as in the Telecommunications (Interception and Access) Act 1979 .



 

Part 3 Recovery of costs by carriage service providers etc. for providing assistance to Australian law enforcement authorities

Telecommunications Act 1997

54  After paragraph 313(3)(c)

Insert:

                    (ca)  assisting the enforcement of the criminal laws in force in a foreign country;

55  After paragraph 313(4)(c)

Insert:

                    (ca)  assisting the enforcement of the criminal laws in force in a foreign country;

56  Application of amendments made by items 54 and 55

(1)       The amendment made by item 54 of this Schedule applies to help given by a carrier or carriage service provider on or after the commencement of this item.

(2)       The amendment made by item 55 of this Schedule applies to help given by a carriage service intermediary on or after the commencement of this item.