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Telecommunications Interception and Intelligence Services Legislation Amendment Bill 2011

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2010 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

TELECOMMUNICATIONS INTERCEPTION AND INTELLIGENCE SERVICES LEGISLATION AMENDMENT BILL 2010

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

(Circulated by authority of the Attorney-General,

the Honourable Robert McClelland MP)



TELECOMMUNICATIONS INTERCEPTION AND INTELLIGENCE SERVICES LEGISLATION AMENDMENT BILL 2010

OUTLINE

1.              The main purpose of this Bill is to amend the Telecommunications (Interception and Access) Act 1979 (the TIA Act), the Australian Security Intelligence Organisation Act 1979 (the ASIO Act) and the Intelligence Services Act 2001 (the IS Act) to enable greater cooperation, assistance and information sharing within Australia’s law enforcement and national security communities.

2.              The inaugural National Security Statement delivered to Parliament on 4 December 2008, highlighted the need for a closer relationship between the agencies that make up the national security community.  The National Security Statement also acknowledged the critical need for the sharing of intelligence and data in the current security environment.  The failed terrorist attack on North West Airlines Flight 253 on 25 December 2009 also highlighted the need for intelligence, law enforcement and other national security agencies to be well connected and the need to remove legislative barriers to interoperability and intelligence sharing.  

3.              The Bill will enable the Australian Security Intelligence Organisation (ASIO), the Australian Secret Intelligence Service (ASIS), the Defence Signals Directorate (DSD) and the Defence Imagery and Geospatial Organisation (DIGO) to more closely cooperate and to assist one another in the performance of one another’s functions.  This measure will facilitate these agencies being able to work together and harness resources in support of key national security priorities. 

4.              In the case of ASIO, the Bill also provides for amendments to the communication provisions in the ASIO Act to provide greater flexibility for ASIO to share information obtained in the performance of ASIO’s functions with other Australian intelligence agencies and with the broader national security community.  These amendments will facilitate greater intelligence sharing among the national security community, which will support ASIO’s capacity to cooperate with and assist other national security agencies.  

5.              ASIO has expertise in a number of areas that would assist law enforcement agencies to access information and to respond in a timely manner.  This Bill will specifically enable ASIO to cooperate with and provide assistance to law enforcement agencies in relation to telecommunications interception and other areas of expertise such as technical support, logistics and analytical assistance and advice.

6.              In assisting law enforcement agencies, ASIO will be subject to existing legislative requirements contained in the TIA Act and the ASIO Act.  The Bill does not affect the distinction between law enforcement and intelligence functions - arrests and prosecutions will remain a matter for police and prosecutorial authorities. ASIO’s primary function will remain gathering and analysing intelligence. 

 



7.              The Bill also implements other measures in the TIA Act that will improve the operation of this Act by: 

a)       requiring carriers and nominated carriage services providers (C/NCSPs) to regularly inform the Communications Access Co-ordinator (CAC) of proposed changes to telecommunications services and networks which may have a material adverse effect on a C/NCSPs ability to meet its various legal obligations in the TIA Act and the Telecommunications Act 1997  

b)       enabling telecommunications data, such as call records, to be obtained and used by Police Forces to assist in finding missing persons

c)       enabling enforcement agencies access to the stored communications of victims of crime in circumstances where victims are unable to be notified, and

d)      permitting delegation of the person within a carrier and carriage service provider who is required to be notified when a telecommunications warrant is issued.

8.              The Bill will also make a number of minor and technical changes to rectify formatting and typographical errors and to modernise drafting.

 

FINANCIAL IMPACT STATEMENT

The amendments made by the Telecommunications Interception and Intelligence Services Legislation Amendment Bill 2010 will have no fi nancial impact. 

NOTES ON CLAUSES

Clause 1 Short title

Clause 1 is a formal provision specifying the short title of the Bill.  It provides that the Act may be cited as the Telecommunications Interception and Intelligence Services Legislation Amendment Act 2010 .

Clause 2 Commencement

Clause 2 provides for the commencement of the Bill.

This Act will commence on the day after this Act receives Royal Assent.

Clause 3 Schedule(s)

Clause 3 provides that each Act that is specified in a Schedule is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.



Schedule 1 - Exercise of warrant powers

Telecommunications (Interception and Access) Act 1979

Schedule 1 amends the Telecommunications (Interception and Access) Act 1979 (the TIA Act) to enable the Australian Security Intelligence Organisation (the Organisation) to provide technical assistance to law enforcement agencies in relation to telecommunications interception warrants issued to those agencies.

Section 55 of the TIA Act already allows law enforcement agencies to approve officers or classes of officers of another interception agency to exercise the authority conferred by a telecommunications interception warrant.    However, section 55, in its current form, does not allow an officer of the Organisation to be a recipient of this conferral.  Schedule 1 will primarily amend section 55 to allow the Organisation to assist enforcement agencies in relation to warrants issued under Part 2-5 of the TIA Act. 

The addition of the reference to classes of officers, staff members and persons assisting the Organisation will enable the Organisation to provide the necessary range of technical and logistical assistance and support to other agencies exercising powers conferred by Part 2-5 Warrants.

Schedule 1 also makes associated amendments relating to the notification of a warrant being issued, the revocation of warrants, the issuing of evidentiary certificates in relation to things done through those warrants and associated record-keeping and reporting requirements.  The Schedule also contains amendments to incorporate plain English drafting into the Parts of the TIA Act amended by this Schedule.

Items 1 and 2 - Paragraph 52(1)(a) and subsection 52(2)

Items 1 and 2 modernise the TIA Act’s drafting.  These amendments do not affect the TIA Act’s operation.

Item 3 - Subsection 52(3)

Section 52 of the TIA Act requires certain steps to be taken by an interception agency where an eligible Judge or nominated Administrative Appeals Tribunal member revokes a warrant which was issued by way of an application made via telephone under section 51 of the TIA Act. These steps include obligations relating to persons upon whom the authority to exercise a warrant has been conferred.

Item 3 amends subsection 52(3) of the TIA Act to include circumstances where an employee or an officer of the Organisation, or a person assisting the Organisation perform its functions, is exercising the authority conferred by a warrant to ensure that the Director-General of Security is notified that the warrant has been revoked and interception immediately ceases.  The drafting of section 52 has also been modernised.

Item 4, 5 and 6 - Subsections 55(1), 55(3) and 55(5)

The TIA Act regulates the persons who can exercise the authority of an interception warrant that has been issued to a law enforcement agency under Part 2-5 of the TIA Act (that is, a warrant issued to an interception agency other than the Organisation).

Section 55 establishes the persons who can be authorised to exercise the authority of a warrant.  The chief officer of an agency (or a person authorised under subsection 55(4)) can currently authorise:

·       officers or staff members of the chief officer’s agency

·       classes of officers or staff members of the chief officer’s agency

·       officers or staff members of another interception agency (other than the Organisation), or

·       classes of officers or staff members of another interception agency (other than the Organisation).

Items 4 and 6 amend subsections 55(1) and 55(5) as a consequence of expanding the persons who can be authorised to exercise the authority of a warrant at Item 5.

Item 5 amends subsection 55(3) to allow the chief officer of an agency (or their delegate) to authorise relevant persons from the Organisation, or persons assisting the Organisation in the performance of its functions, to exercise the authority of an interception warrant to facilitate the interception. 

Item 7 - At the end of section 55

Item 7 inserts new subsection 55(8) to clarify that a person mentioned under paragraph 55(3)(d) is acting on behalf of the Organisation and that it is the Organisation that is exercising the warrant’s authority.  Paragraph 55(3)(d) enables a person assisting the Organisation in the performance of its functions to be authorised to exercise the authority of a warrant issued to an agency.  This provision mirrors the breadth of section 12, which is the corresponding provision to section 55 in relation to warrants issued to the Organisation.  Section 12 is designed to include persons who assist the Organisation with the execution of a warrant.

This provision clarifies that the nature of this assistance does not remove the Organisation’s responsibility for that person’s actions.

If the person providing the assistance to the Organisation is a member of an agency to which the provisions of the Intelligence Services Act 2001 (IS Act) apply, and that person is providing assistance to ASIO pursuant to proposed new section 13A of the IS Act (Schedule 6), that the person must also comply with any relevant directions issued by the relevant Minister and/or agency head pursuant to the cooperation arrangement.

Items 8 and 9 - Subsections 57(1), (2), (3) and (4)

Section 57 of the TIA Act sets out the steps that must be taken by an agency when a Part 2-5 warrant is revoked by the chief officer of the agency.  Section 57 first sets out the grounds on which a warrant can be revoked (as well as when a revocation is mandatory).  It also sets out the obligations of the chief officer of the agency (who has revoked a warrant), to notify any person who is exercising the authority of the warrant.

Item 8 amends these provisions to ensure that the Organisation is adequately informed if it is exercising the authority of another agency’s warrant when that warrant is revoked. This is necessary to ensure interception is only conducted pursuant to a warrant. 

Item 9 makes consequential amendments to subsection 57(4) as a result of Item 8.  The amendments also modernise the drafting of section 57.

Items 10, 11, 12 and 13 - Subsections 58(1) and (2)

Section 58 of the TIA Act sets out the obligations on a person who has been notified of a revocation made pursuant to section 57 of the TIA Act. The key requirement is that the agency must take steps to stop the interception once it has been informed that an interception warrant has been revoked.

Items 10, 11, 12 and 13 amend section 58 to include circumstances when another agency (including the Organisation) is exercising the authority of an interception warrant. 

The amendments also modernise the drafting of section 58.

Item 14 - Section 59

Item 14 makes a consequential amendment to section 59 of the TIA Act as a result of Item 8.

Item 15 - Paragraphs 60(1)(c), (3)(c) and (5)(c)

Item 15 replaces the phrase ‘forthwith’ with ‘immediately’ in paragraphs 60(1)(c), 60(3)(c) and 60(5)(c) to modernise the language used.  The amendments are not intended to affect the operation of the provision.

Item 16 - After subsection 61(4)

Evidentiary certificates are prepared by both the Organisation and law enforcement agencies to include facts relating to the execution of interception warrants.  These certificates are then taken as prima facie evidence in an exempt proceeding.  Evidentiary certificates are designed to protect sensitive capabilities of agencies in relation to their ability to intercept and process communications.

Item 16 inserts new subsection 61(4A) so that an evidentiary certificate may be issued by the Organisation when it provides assistance to law enforcement agencies relating to a warrant issued under Part 2-5 of the TIA Act. 

Item 17 - Subsection 61(5)

Item 17 makes consequential amendments to 61(5) as a result of Item 16.  Item 17 provides that a certificate issued under new subsection 61(4A) is prima facie evidence.

Item 18 - At the end of section 64

In addition to limiting the grounds for which a warrant can be issued, the TIA Act also limits how information that has been obtained through telecommunications interception (‘lawfully intercepted information’, as defined in section 6E of the TIA Act) may be used or disclosed.

Section 63 of the TIA Act places a general prohibition on the use of intercepted information.   Section 64 of the TIA Act provides an exception to this prohibition, allowing certain people to use or disclose intercepted information, warrant information (as defined in section 6EA) or foreign intelligence information (as defined in section 5) in connection with the Organisation’s functions or for the purposes of security.  Section 68 of the TIA Act allows a chief officer of an agency to disclose intercepted information to the Organisation, where the information relates to activities prejudicial to security, and to another agency where the information appears to relate to a matter or proceeding for which the second agency has jurisdiction.

Item 18 inserts new subsections 64(3) and (4) which provide that the Organisation, or persons assisting the Organisation in the performance of its functions, is not able to use or disclose information obtained by intercepting on behalf of another agency, or otherwise providing technical assistance in relation to telecommunications interception, for its own purposes.     

The Organisation, or persons assisting the organisation in the performance of its functions, may only use or disclose information obtained by intercepting on behalf of another agency, or otherwise providing technical assistance in relation to telecommunications interception, where the information has been communicated to the Director-General of Security in accordance with section 68 of the TIA Act or for purposes connected with the investigation under which the information was obtained.

The intention of this provision is to maintain existing controls on dealing with intercepted information and related information and prevent the capacity sharing function resulting in an erosion of existing safeguards in the TIA Act.

Item 19 - At the end of section 65

Section 65 of the TIA Act regulates how the Organisation can disclose intercepted information to other agencies. This section allows the Director-General of Security to communicate intercepted information and related information in accordance with the ASIO Act.

Item 19 inserts new subsection 65(3) to provide that the Organisation cannot disclose information it obtains when exercising the authority of a warrant conferred upon it under section 55 of the TIA Act.  The provisions are designed to operate so that once the assisted agency receives the information, it has the discretion to disclose it to the Organisation, for the Organisation’s use, in accordance with section 68 of the TIA Act.

The intention of this provision is to maintain existing controls and safeguards on the use and disclosure of intercept and related information.

Items 20 and 21 - Section 66

Section 66 of the TIA Act allows an interceptor of a communication to disclose the information to the agency that has been issued the warrant.  This provision is designed to allow employees of carriers intercepting the communication, as well as the monitors of intercepted traffic at the agency, to disclose intercept information to investigators.

Item 20 makes a consequential amendment to paragraph 66(1)(b) as a result of Item 5, to allow the Organisation to intercept communications on behalf of an interception agency. 

Item 21 amends subsection 66(2) to provide that the chief officer of an agency may authorise, in writing, any person referred to in paragraphs 55(a) to (c) to receive, from the interceptor, information obtained by interceptions under warrants issued to the agency.  This will facilitate the Organisation or an agency conducting interception on behalf of another agency, undertaking technical assistance and then passing the information to the investigative officer within the agency which obtained the warrant.

Item 21 also inserts new subsection 66(3) to provide that where the chief officer of an agency authorises a person outside the agency that obtained the warrant, the authorisation must only extend to purposes related to the investigation to which the warrant relates.  The intention of this limitation is to maintain existing controls and safeguards in the TIA Act on dealing with intercept and related information.

Item 21 also inserts new subsection 66(4) to provide that a chief officer of an agency may delegate the authority under subsection 66(2) to authorise persons to receive intercept information.  

Item 22 - After subsection 67(1)

Section 67 of the TIA Act mirrors section 64, except that, rather than outlining the permitted uses for the Organisation, it relates to how intercepted information can be used by other interception agencies.  Item 22 amends subsection 67(1) to ensure that agencies intercepting on behalf of, or providing technical assistance to another agency, cannot use the information obtained for their own purposes.

Items 23, 24 and 25 - Section 81

Section 81 of the TIA Act outlines specific record keeping obligations on Commonwealth interception agencies in relation to warrants issued under Part 2-5 of the TIA Act.  The TIA Act relies on parallel State laws to place similar obligations on State agencies.   Section 35 of the TIA Act requires the Attorney-General to be satisfied that similar State laws are in place prior to a State agency being declared as an interception agency.   The relevant oversight body may inspect these records as part of its oversight functions.  The Organisation has separate record keeping, reporting and oversight arrangements and is subject to inspection by the Inspector General of Intelligence and Security.

Item 23 inserts new subsection 81(2A) to require the Director-General of Security, when the Organisation is intercepting on behalf of a Commonwealth interception agency, to record and provide the agency with any information it requires to meet its record keeping obligations in subparagraphs 81(1)(c)(ii), (iii) and (iv), and paragraph 81(1)(d) of the TIA Act.

Item 25 inserts new section 81AA to require the Director-General of Security, when the Organisation is intercepting on behalf of a State or Territory interception agency, to record and provide the agency with any information it requires to meet its record keeping obligations in subparagraphs 81(1)(c)(ii), (iii) and (iv), and paragraph 81(1)(d) of the TIA Act.

Item 24 makes a consequential amendment to subsection 81(3) as a result of Item 23.

Item 26 - After paragraph 103(ac)

Section 103 of the TIA Act contains reporting requirements for interception agencies in relation to statistics on the use, duration, cost and success of interception warrants.

Item 26 inserts new paragraph 103(aca) to provide that the Annual Report on warrants issued under Part 2-5 of the TIA Act include the number of interceptions conducted by the Organisation on behalf of other agencies.  The requirement is placed on the agency on whose behalf the Organisation has intercepted.

 

Item 27 - Subsections 127(1) and (2)

Section 127 of the TIA Act is the equivalent to section 55 in relation to stored communications warrants rather than interception warrants.

Item 27 makes consequential amendments to section 127 as a result of Item 5 to ensure that the language used is consistent. 

Item 28 - Saving provision in relation to items 5 and 27

Item 29 is a saving provision to clarify that all persons authorised under subsections 55(3) or 127(2) of the TIA Act to exercise the authority of a warrant prior to Schedule 1 commencing will continue to be authorised persons for these purposes after Schedule 1 has commenced.  This saving provision will prevent State and Territory Police Forces from having to re-issue the relevant authorisations.

Item 29 - Saving provision in relation to item 9

Item 29 is a saving provision to clarify that a delegation made under subsection 57(4) of the TIA Act by the chief officer of an agency to revoke an interception warrant under subsection 57(2) of the TIA Act that was in force immediately before the commencement of Schedule 1, has effect after the Schedule commences.



Schedule 2 - Requirement to inform of proposed changes

Telecommunications (Interception and Access) Act 1979

Chapter 5 of the Telecommunications (Interception and Access) Act 1979 (the TIA Act) places obligations on the telecommunications industry to provide assistance to interception agencies.  Three classes of industry members are subject to obligations:

·       carriers

·       carriage service providers, and

·       nominated carriage service providers.

Carriers and carriage service providers (C/CSPs) are defined in the TIA Act by reference to the respective definitions in the Telecommunications Act 1997 (Telecommunications Act).  In short, the distinction between the two is that a carrier owns telecommunications infrastructure, whilst a carriage service provider operates services which pass over that infrastructure.

A ‘nominated carriage service provider’ is a term specific to the TIA Act.  The Attorney-General, as the Minister responsible for the TIA Act, may nominate a carriage service provider under subsection 197(4). 

Part 5-4 of the TIA Act requires Carriers and Nominated Carriage Service Providers (C/NCSPs) to submit an interception capability plan (IC plan) to the Communications Access Co-ordinator (CAC).  Section 195 of the TIA Act details the required contents of an IC plan, including each C/NCSP’s strategy to comply with its legal obligations with respect to interception. Sections 196 and 197 of the TIA Act require that IC plans be submitted annually. Section 200 of the TIA Act requires that C/NCSPs ensure that business activities are consistent with IC plans.

Section 201 of the TIA Act requires C/NCSPs to submit a revised IC plan to the CAC if an IC plan ceases due to changes to a C/NCSP’s business plan.  This provision requires that an IC plan be updated if there is any change to a matter set out in section 195.  Agencies need to be aware of changed business plans because they may have a material impact on a C/NCSP’s ability to meet its obligations under the TIA Act and the Telecommunications Act.

The limitation of existing provisions is that notification is only required after a change is made.  A notification to interception agencies, through the CAC, earlier in the development process gives an opportunity for the proposed developments to be varied to include adequate interception capabilities, or to deal with other important issues.

Early government involvement will ensure continuity of interception and delivery capabilities while maximising cost efficiency by inputting during the design stage.

To implement such a notification scheme, this Schedule inserts new Part 5-4A into the TIA Act.  New Part 5-4A will ensure that C/NCSPs inform the CAC in a sufficiently timely manner of changes to telecommunications services, networks, systems or devices which would adversely affect the ability to conduct interception, or to comply with relevant requirements in the Telecommunications Act.

Previous Part 15 Division 4 of the Telecommunications Act, titled ‘Requirements arising from proposed technological changes’, required C/NCSPs to give notice to the Australian Communications Authority (now Australian Communications and Media Authority) of the particulars of any new technology, or change to existing technology, whose implementation may affect the capacity of the carrier or provider to provide help to agencies. New Part 5-4A of the TIA Act is modelled in part on those provisions.

Item 1 - Subsection 5(1) (definition of carriage service provider )

Item 1 inserts a definition of ‘carriage service provider’ into section 5 of the TIA Act.

Currently, a carriage service provider is included within the definition of ‘carrier’ in section 5 and is further defined in section 194 for the purposes of Part 5-4 by its definition in the Telecommunications Act.  This is because Part 5-4 places specific obligations on nominated carriage service providers and so Part 5-4 currently sets out the distinctions between carriers, carriage service providers and nominated carriage service providers (NCSPs).

As the proposed Part 5-4A will also place obligations on NCSPs, the relevant definitions will now be placed in section 5 of the TIA for ease of reference.   

Item 2 - Subsection 5(1) (definition of carrier )

Item 2 amends the definition of carrier to exclude carriage service providers from the application of Parts 5-4 and 5-4A.  Currently, the TIA Act contains a separate definition of carrier for the purposes of Part 5-4.  However, because the Bill will insert new Part 5-4A, which also only applies to nominated carriage service providers, the definition of carrier in section 5 of the TIA Act will, for ease of reference, set out when the definition of carrier does not also include a carriage service provider, for ease of reference

Item 3 - Subsection 5(1) (definition of nominated carriage service provider )

Consistent with Items 1 and 2 to include relevant definitions within section 5 of the TIA Act, Item 3 inserts a definition of ‘nominated carriage service provider’ into section 5 of the TIA Act.

Item 3 transfers the definition of ‘nominated carriage service provider’ from section 194 to

section 5 so that the definitions of carrier, carriage service provider and nominated carriage service provider are all located in the interpretation section of the TIA Act.

Item 4 - Subsection (5)(1) ( definition of notifiable equipment )

Item 4 inserts a definition of the term ‘notifiable equipment’ into section 5 of the TIA Act. 

The purpose of Part 5-4A is to require C/NSCPs to inform the CAC of proposed changes which may have an impact on a C/NCSP’s ability to comply with its obligations to assist interception agencies.

The Bill introduces the defined term ‘notifiable equipment’ to establish which changes fall within this category. Paragraph (a) of the definition intends to capture, in a technologically neutral manner, the equipment which forms a part of the carrier or carriage service provider’s ability to transmit communications. Paragraph (b) of the definition intends to capture the equipment which manages the transmission of communications.  Paragraph (c) includes equipment that manages the data which is created in the course of managing communications passing over the C/NCSP’s systems, which is protected from misuse by section 276 of the Telecommunications Act.

  Item 5 - Chapter 5 (heading)

This item amends the heading of Chapter 5 to read ‘Co-operation with agencies’.

Item 6 - Section 194

Item 6 is a consequential amendment to repeal section 194 as a result of Items 1, 2 and 3 that relocate the definitions of ‘carrier’, ‘carriage service provider’ and ‘nominated carriage service provider’ to section 5 of the TIA Act

Item 7 - Subsection 197(4)

Subsection 197(4) allows the Attorney-General to nominate a carriage service provider to be a nominated carriage service provider for the purposes of Part 5-4 of the TIA Act.

Item 7 amends subsection 197(4) to provide that a CSP that is nominated to comply with Part 5-4 will also be required to comply with new Part 5-4A. 

Item 8 - After Part 5-4A

Item 8 inserts new ‘Part 5-4A - Requirement arising from proposed changes’.  

New section 202A outlines the purpose of Part 5-4A, which is to require all C/NCSPs to notify the CAC of changes that, if implemented, may impact on the C/NCSP’s ability to comply with their obligations under the TIA Act or section 313 of the Telecommunications Act and to allow the CAC to notify agencies of the proposed changes.

The TIA Act obliges all carriers and carriage service providers to have the capability to intercept communications that are passing over their telecommunications system and to deliver those communications to a specific point.  In addition, all C/NCSPs must annually submit an IC plan to the CAC to confirm that they can comply with their statutory obligations to action interception warrants.

Section 313 of the Telecommunications Act places more general obligations on a C/CSP.  For example, subsection 313(1) of the Telecommunications Act requires the C/CSP to do the C/CSP’s best to prevent their telecommunications networks and facilities from being used in, or in relation to, the commission of offences against the laws of the Commonwealth or of the States and Territories.  This includes the misuse of data that is passing over their networks.

In addition, subsection 313(3) of the Telecommunications Act requires that C/CSPs give such help as is reasonably necessary for the enforcement of the criminal law, a law imposing a pecuniary penalty, the protection of the public revenue and to safeguard national security.  Subsection 313(7) gives some specific examples of what this help would be, including providing services in relation to actioning interception and stored communications warrants.

After the CAC has been notified, the CAC may consult with various agencies on the particulars of a change to an IC plan. The purpose of this consultation is to identify changes which are potentially problematic for ensuring the continuity of interception and delivery of communications, as well as related issues. Early consultation facilitates cost effective alterations to network design.

New section 202B of the TIA Act sets out the circumstances in which a notification is required, as well as associated procedural elements.

New subsection 202B(1) of the TIA Act specifies that the section applies if a C/NCSP becomes aware that the implementation of a proposed change is likely to have a material adverse effect on the capacity of the C/NCSP to comply with its obligations under either the TIA Act or section 313 of the Telecommunications Act.  This requirement is intended to apply during the development process of a particular change as soon as potential impacts on legal obligations become foreseeable.

New subsection 202B(2) of the TIA Act provides specific examples of changes which may have a material adverse effect on the capacity of the C/NCSP to comply with its obligations under either the TIA Act or section 313 of the Telecommunications Act.  These include, but are not limited to: outsourcing arrangements, offshoring equipment or services, changes to services, procuring new equipment, and changes to the management of services.

The concept of ‘management’ includes both technical management, such as maintenance and support, as well as business management, such as the collection, storage and administration of customer information, personal details and other management ancillary to the service itself.

The phrase ‘material adverse effect’ intends to include anything which could have an actual or measurable negative impact on the ability to comply with the specific legal obligations.

New subsections 202B(3) and (4) specify that the C/NCSP must notify the CAC of its intention to implement a change in writing and provide sufficient details of the specifics of the change to allow the CAC and agencies to analyse the potential impact, as well as any potential impacts which the C/NCSP has foreseen.

New subsection 202B(5) allows a C/NCSP to proceed with a proposed change if the C/NCSP has notified the CAC of the proposed change and has not received a response from the CAC within 30 days of notification.  In practice, the 30 days will commence when the CAC has acknowledged receipt of the notification to the C/NCSP.  This provision intends to provide certainty to C/NCSPs so that they can proceed without indefinitely waiting for a response by the CAC.

New subsection 202B(6) provides that, where the CAC notifies a C/NCSP within 30 days of receipt of the notification that the proposed change is of concern, the CAC has a further 30 days to specify a solution in relation to specific obligations to deliver intercepted information, in line with the current Determination making power under section 203 of the TIA Act.  The proposed change cannot be implemented within this subsequent 30 day period, unless the CAC has made a Determination.  However, if the CAC notifies a C/NCSP of a possible issue and, within that 30 day period, a solution is put in place which satisfies both the C/NCSP and the CAC, the change can be implemented before the 30 day period has elapsed.

New subsection 202B(7) clarifies that the CAC may make a Determination under section 203 of the TIA Act subsequent to the 30 day period in new paragraph 202B(6)(b).

New section 202C allows the CAC to engage in consultations with agencies after receiving notification from a C/NCSP of an intention to implement a proposed change under new section 202B.  The CAC, and any agency consulted about the change, is required to keep the information regarding the proposed change confidential. The requirement of confidentiality intends to allow circulation of information regarding change within, but not beyond, the Commonwealth Government, interception agencies and enforcement agencies.  The provision recognises the key role that consultation plays between the CAC and the interception agencies on whose behalf the CAC makes decisions.

Item 9 - Application of this Schedule

Item 9 clarifies that Part 5-4A applies only to changes proposed after this Schedule commences. Changes proposed prior to the commencement of this provision, but not yet implemented, will be bound by the provisions of section 201 which require updated business plans to be reported.



Schedule 3 - Disclosure of telecommunications data relating to missing persons

Telecommunications (Interception and Access) Act 1979

Currently, sections 276, 277 and 278 of the Telecommunications Act 1997 (the Telecommunications Act) make it an offence for specified classes of persons, including employees of carriers, to disclose information which comes into existence as a consequence of the business activities undertaken by that carrier.  These provisions are designed to protect the privacy of telecommunications users.

Part 4-1 of the Telecommunications (Interception and Access) Act 1979 (the TIA Act) provides exceptions to these offences.  These exceptions relate to authorisations for access to telecommunications data made by senior officers of enforcement and security agencies where the officer is satisfied that the specified information subject to the authorisation is reasonably necessary for the purposes of security, the enforcement of the criminal law, the enforcement of a law imposing a pecuniary penalty or for the protection of the public revenue.

Part 4-1 of the TIA Act does not currently provide for circumstances where police are performing functions in relation to protecting public safety short of investigating unlawful conduct.  Most notably, police are unable to rely on Part 4-1 to assist in locating a missing person. Telecommunications data can assist Police Forces when trying to locate a missing person, as information such as call records and location information provide patterns about a person’s movements as well as signs of life.

This Schedule will amend Part 4-1 of the TIA Act so that an authorised officer of a Police Force can authorise the disclosure of telecommunications data when the disclosure is relevant to the location of a person who is the subject of a missing person’s report.  

Noting that the function of locating a missing person relates to public safety rather than investigating criminal activity, the new provisions relating to the use of information obtained to locate a missing person will be more stringent than the provisions relating to the use of information obtained to investigate criminal conduct.

Because not all missing persons want their location divulged, the Bill contains provisions that limit the authority of the Police Force to disclose telecommunications data to the person making the missing person’s report.

Items 1 and 2 - Subsection 5(1) (definition of missing person information and non-missing person information )

Items 1 and 2 insert definitions of ‘missing person information’ and ‘non-missing person information’.  These definitions will be located in new subsection 182(5).  Missing person information is information obtained by way of an authorisation under new section 178A, which allows an authorising officer of the Australian Federal Police or a Police Force of a State to authorise a carrier to disclose information if it is relevant to locating a missing person.

Non-missing person information is information obtained under another authorising provision of Part 4-1.

These definitions will be utilised in the specific secondary use and disclosure provisions for information obtained to locate a missing person.



Item 3 - After section 178

Item 3 inserts new section 178A into Part 4-1 of the TIA Act to provide for an authorising officer of the Australian Federal Police or a Police Force of a State to authorise a disclosure of telecommunications data that would otherwise be prohibited by sections 276, 277 and 278 of the Telecommunications Act. 

The authorisation may authorise the disclosure of information or documents that came into existence prior to the receipt of the authorisation by the carrier from whom the disclosure is sought.

The authorisation can be made when the authorising officer is satisfied that the disclosure is reasonably necessary for the purposes of finding a person who the Australian Federal Police, or a Police Force of a State, has been notified is missing.

Items 4 and 6 - Subsections 182(2) and (3)

Item 4 makes consequential amendments to subsections 182(2) and (6) as a result of Item 3 to replace the phrase ‘information or a document’ with the new defined phrase ‘non-missing person information’.  This amendment isolates missing person information from the application of the current disclosure provisions in Chapter 4.

Item 5 - After subsection 182(2)

Item 5 inserts new subsection 182(2A) to regulate the secondary disclosure of telecommunications data obtained pursuant to new section 178A, which is defined as ‘missing person information’

New subsection 182(2A) aims to be more limited than existing subsection 182(2) to reflect the fact that information obtained under section 178A is for the purposes of public safety and should not be disclosed to obtain evidence for criminal investigations. 

New paragraph 182(2A)(a) provides that the disclosure of missing person information is permitted for the purpose for which the initial disclosure was authorised - that is where the disclosure is reasonably necessary for the purposes of finding a person who the Australian Federal Police, or a Police Force of a State, has been notified is missing. 

New Paragraph 182(2A)(b) sets out the circumstances when missing person information can be disclosed to the person who made the missing person’s report. 

New subparagraph 182(2A)(b)(i) provides that missing person information can be disclosed to the person who made the missing person report if the missing person consents to the disclosure.  This allows the Police Force to inform a missing person’s friends or family that the person has been found if the person agrees. Alternatively, if the person does not agree to disclosure, the Police Force must abide by that decision.  

New subparagraph 182(2A)(b)(ii) provides that the Australian Federal Police or a Police Force of a State may disclose missing person information to the person who made the missing person’s report to prevent a threat to the missing person’s health, life or safety if the person is unable to consent. This provision intends to apply where the missing person is unable to consent for any reason, including being a child, suffering a relevant mental disability or being in a coma.

Subparagraph 182(2A)(b)(iii) provides that the Australian Federal Police or a Police Force of a State may disclose missing person information to the person who made the missing person report if the missing person is deceased.

Item 7 - At the end of section 182

Item 7 inserts new subsection 182(4) to limit the use of missing person information by the Australian Federal Police or a Police Force of a State which is trying to locate a missing person. The relevant Police Force can only use missing person information for the purpose of locating a missing person.

Item 7 also inserts new subsection 182(5) which provides the definitions of ‘missing person information’ and ‘non-missing person information’.

Item 8 - After paragraph 186(1)(a)

The TIA Act currently requires enforcement agencies to report on the number of authorisations made by their agency under the different authorisations categories under Chapter 4 of the TIA Act. 

Item 8 inserts paragraph 186(1)(a) to require enforcement agencies to report annually on the number of authorisations made in relation to missing person information under new section 178A.

Item 9 - Application of this Schedule

Item 9 sets out the application of the new provisions. The powers in relation to accessing telecommunications data for the purposes of finding missing persons are available for data that came into existence prior to this Schedule commencing and to locate people who went missing prior to this Schedule commencing. 



Schedule 4 - Stored communications warrants in relation to victims of serious contraventions

Telecommunications (Interception and Access) Act 1979

Schedule 4 amends Chapter 3 of the Telecommunications (Interception and Access) Act 1979 (TIA Act) to enable enforcement agencies to apply for a stored communications warrant to access the stored communications of a victim of a serious contravention without that person’s consent. 

Accessing a stored communication does not involve intercepting a communication as it occurs.  Rather, a stored communication is defined in the TIA Act as being a communication that is not passing over a telecommunications system, is held on a carrier’s network and can only be accessed with the assistance of a carrier.  Enforcement agencies can already access such communications where the victim can be notified that their stored communications will be obtained in order to investigate the contravention.  However, the victim may not always be available because, for example, they are missing, incapacitated or deceased.  In these circumstances enforcement agencies cannot access stored communications to gather information that could help locate the victim or prosecute the offender.

Stored communications can be obtained without consent under a stored communications warrant but only where an enforcement agency is investigating a ‘serious contravention in which the person is involved’ (see section 116 of the TIA Act).  A ‘serious contravention’ is defined in section 5E of the TIA Act.  It includes a contravention that is a serious offence or an offence punishable by imprisonment for a period of at least 3 years, or where the offence is committed by an individual, a fine of at least 180 penalty units, or at least 900 penalty units where the offence cannot be committed by an individual.  While these requirements clearly apply to perpetrators and persons suspected of committing a serious contravention, it is unclear whether they also apply to the victim of a serious contravention.

The amendments contained in this Bill will remove any ambiguity, clarifying that a stored communications warrant can be obtained to access the stored communications of both the offender and the victim of a serious contravention. 

Item 1 - Paragraph 116(1)(d)

Item 1 amends the test an enforcement agency must satisfy when applying for a stored communications warrant to include the victim of a serious contravention.  Currently, paragraph 116(1)(d) states that the issuing authority must be satisfied that the information that would be accessed by exercising the authority of the warrant would be likely to assist in connection with the investigation by the agency of a serious contravention ‘in which the person is involved.’

Item 1 will insert after the phrase ‘in which the person is involved’ the phrase ‘including as a victim of the serious contravention’.  This amendment will allow an enforcement agency to obtain a stored communications warrant if, when satisfying the other limbs of the test set out in section 116, accessing the stored communications of the victim of the serious contravention would assist the investigation of the contravention.

Item 2 - After paragraph 116(1)(d)

Item 2 clarifies that covert access to communications is limited to circumstances where the victim cannot consent or where it is impracticable for the victim to consent.

Item 2 inserts a further test to section 116 in relation to applications for a stored communications warrant to access the stored communications of victims of serious contraventions. The new paragraph requires the issuing authority to be satisfied that the victim cannot consent, or that it is impracticable for the victim to consent, to the stored communications being accessed. 

Item 3 - Paragraph 116(1)(e)

Item 3 is a consequential amendment to paragraph 116(1)(e) as a result of Item 2 and reflects current drafting practices.

Item 4 - Application of this Schedule

Item 4 is an application provision.  It clarifies that an enforcement agency can apply for a stored communications warrant in relation to the victim of a serious contravention whether the information to be accessed was first held on a carrier’s network before or after the schedule commenced and whether the conduct being investigated was committed before or after the schedule commenced. Schedule 4 does not retrospectively criminalise any activity. 

 

 



Schedule 5 - Notifying Managing Directors of warrants

Telecommunications (Interception and Access) Act 1979

Under section 47 of the TIA Act, interception under a warrant is only authorised where the Managing Director of the carrier has been notified of the warrant in accordance with subsection 60(1) of the TIA Act and the interception is undertaken by an employee of the carrier.

Subsection 60(1) requires that the ‘certifying officer’ of the agency to whom an interception warrant has been issued must inform the Managing Director of the carrier that the warrant has been issued.  Section 15 places a similar obligation on the Director-General of Security when the Organisation intercepts communications with the assistance of a carrier. 

Currently, the Managing Director of a carrier cannot nominate anyone else within the carrier to receive the notification, meaning that a warrant cannot be executed if the Managing Director is not readily available.  The Bill amends several notification provisions in the TIA Act to allow notifications to be made to a carrier representative authorised by the Managing Director so as to ensure investigations are not stymied by the unavailability of a carrier’s Managing Director. 

Item 1 - Subsection 5(1) (definition of authorised representative )

Item 1 inserts a new definition of ‘authorised representative’ into subsection 5(1) of the TIA Act.  An authorised representative is the Managing Director or Secretary of the carrier or an employee of the carrier who has been authorised in writing by the Managing Director.  An authorised representative will be able to be notified about the issue of and the revocation of telecommunications interception and stored communications warrants.

Items 2 to 9 - Section 15

Items 2 to 9 replace the references to ‘Managing Director’ in section 15 of the TIA Act with the term ‘authorised representative’.  Section 15 sets out the notification requirements that the Organisation must satisfy once an interception warrant requiring action by a carrier has been issued to the Organisation.

The provisions mean that the authorised representative who is notified of the issue of a warrant under subsection 15(1) will also be required to receive the subsequent notification about the revocation of the warrant in order for the Organisation to comply with section 15.

Items 10 to 15 - Section 16

Items 10 to 15 replace the references to ‘Managing Director’ in section 16 of the TIA Act with the term ‘authorised representative’.  Section 16 sets out the additional requirements that apply when the Organisation has been issued a named person warrant.

The provisions mean that the authorised representative who is notified of the issue of a warrant under subsection 16(1) will also be required to receive the subsequent notification about the revocation of the warrant in order for the Organisation to comply with section 16.

Item 16 - Paragraph 47(a)

Item 16 amends paragraph 47(a) of the TIA Act.  Section 47 of the TIA Act limits the authority of an interception warrant issued to an interception agency (other than the Organisation) insofar as the interception can only take place after the Managing Director has been notified of the issue of an interception warrant under Part 2-5 of the TIA Act and the interception takes place as a result of actions by the employee of a carrier.

Similar to items 2 to 9, Item 16 replaces the reference to the term ‘Managing Director’ in subsection 47(a) with the term ‘authorised representative’.

Items 17 to 26 - Section 60

Items 17 to 26 amend section 60 of the TIA Act.  Section 60 imposes the requirements upon interception agencies (other than the Organisation) to notify the Managing Director of a carrier in relation to the issue and revocation of interception warrants.  The amendments replace the term ‘Managing Director’ with the term ‘authorised representative’.

The provisions mean that the authorised representative who is notified of the issue of a warrant under subsection 60(1) will also be required to receive the subsequent notification about the revocation of the warrant in order for the agency to comply with the requirements of section 60.

Items 27 and 28 - Section 121

Items 27 and 28 amend section 121 of the TIA Act.  Section 121 sets out the notification requirements when a stored communications warrant has been issued to an enforcement agency.  The Managing Director must be notified of the issue of the warrant and be given a certified copy of the warrant.

Items 27 and 28 will amend these provisions so that an authorised representative of the carrier can be notified in accordance with section 121.

Items 29 to 31 - Section 123

Items 29 to 31 amend section 123 of the TIA Act, which sets out the notification requirements for the revocation of a stored communications warrant.  Items 29 to 31 will replace the references to the term ‘Managing Director’ in section 123 with the term ‘authorised representative’.

The provisions mean that the authorised representative who is notified of the issue of a warrant under section 121 will also be required to receive notification about the revocation of the warrant under section 123.

Items 32 to 35 - Section 124

Stored communications warrants are issued in relation to a particular person rather than a particular service.  During the course of an investigation agencies may become aware that the person who is the subject of the warrant is using additional services.  Section 124 of the TIA Act allows agencies to add these services to the warrant by providing the Managing Director of the carrier with a written description of the service. 

Items 32 to 35 replace the reference to the term ‘Managing Director’ with the term ‘authorised representative’ so that an authorised representative can be notified in accordance with section 124.



Item 36 - Section 126

Item 36 amends section 126 of the TIA Act.  Section 126 applies to stored communications warrants in the same way that section 47 applies to interception warrants in that the authority of a stored communications warrant cannot be exercised until the Manager Director of the carrier has been notified of the issue of the warrant. 

Item 36 replaces the term ‘Managing Director’ with the term ‘authorised representative’ so that an authorised representative can be notified in accordance with section 126.

Item 38 - Application of Schedule

Item 38 means that this schedule will apply to any warrant that has been issued before or after the Schedule commences, where a notification referred to in one of the amended provisions has not been made.



Schedule 6 - Cooperation and assistance function for intelligence agencies

Australian Security Intelligence Organisation Act 1979

Intelligence Services Act 2001

Telecommunications (Interception and Access) Act 1979

 

Schedule 6 will amend the Australian Security Intelligence Organisation Act 1979 ( ASIO Act) and the Intelligence Services Act 2001 (IS Act) to enable greater cooperation and assistance and information sharing among Australia’s national security community.

 

The amendments relating to cooperation will enable the Australian Security Intelligence Organisation (ASIO), the Australian Secret Intelligence Service (ASIS), the Defence Signals Directorate (DSD) and the Defence Imagery and Geospatial Organisation (DIGO) to cooperate more closely and to assist one another in the performance of one another’s functions.  It will also enable ASIO to cooperate and assist law enforcement agencies, particularly in areas such as telecommunications interception and technical and other support. It will also be possible to prescribe other agencies by Regulation for the purpose of enabling ASIO, ASIS, DSD and DIGO to cooperate with and assist those other Australian Government bodies in the future, should this be considered desirable.

 

Schedule 6 also provides for amendments to the communication provisions in the ASIO Act .   These amendments remove barriers and enhance intelligence sharing among the national security community, which will support ASIO’s capacity to cooperate with and assist other national security agencies.  

  

Australian Security Intelligence Organisation Act 1979

Item 1 - Section 4 (definition of ASIS )

Item 1 will insert a new definition of ‘ASIS .  ASIS will have the meaning given by the IS Act, which means the Australian Secret Intelligence Service.   

Item 2 - Section 4 (definition of authority of the Commonwealth )

Item 2 inserts new paragraph (aa) in the existing definition of ‘authority of the Commonwealth’ to provide that ‘authority of the Commonwealth’ includes a Department within the meaning of the Parliamentary Service Act 1999 .  The inclusion of paragraph (aa) will ensure that the definition of ‘authority of the Commonwealth’ in the ASIO Act is consistent with the definition of ‘Commonwealth authority’ in the IS Act.   

Item 3 - Section 4 (definition of authority of the Commonwealth )

Item 3 repeals the current paragraph (f) of the definition of ‘authority of the Commonwealth’ and replaces it with a new paragraph (f) that better reflects modern corporation arrangements. The current definition of ‘authority of the Commonwealth’ includes ‘a company the whole of the share capital of which is held by the Commonwealth.’  This will be replaced by a reference to ‘a body corporate in which the Commonwealth or a body referred to in paragraph (c) [of the definition of authority of the Commonwealth] has a controlling interest.’  This change is consistent with the definition of ‘Commonwealth authority’ in the IS Act. 

Item 4 - Section 4 (definition of authority of a State )

Item 4 inserts a definition of ‘authority of a State’ in section 4.  This proposed new definition is modelled on the definition of ‘State authority’ in section 3 of the IS Act.  It includes State Departments, bodies established for a public purpose by a law of a State, and bodies corporate in which a State or a body established for a public purpose by a law of a State has a controlling interest. 

This proposed new definition in section 4 also notes that the existing definition of ‘authority of a State’ in subsection 35(1) for the purposes of Part IV of the ASIO Act is not affected in so far as it relates to that Part. 

Item 5 - Section 4 (definition of DIGO )

Item 5 will insert a new definition of ‘DIGO’.  ‘DIGO’ will have the meaning given by the IS Act, which means that part of the Department of Defence known as the Defence Imagery and Geospatial Organisation. 

Item 6 - Section 4 (definition of DSD )

Item 6 will insert a new definition of ‘DSD’.  ‘DSD’ will have the meaning given by the IS Act, which means that part of the Department of Defence known as the Defence Signals Directorate. 

Item 7 - Section 4 (definition of law enforcement agency )

Item 7 will insert a definition of ‘law enforcement agency’.  ‘Law enforcement agency’ will mean an authority of the Commonwealth, or an authority of a State, that has functions relating to law enforcement. 

This definition is necessary for proposed section 19A (inserted by item 17), which will enable ASIO to co-operate with and provide assistance to law enforcement agencies. 

The definition of ‘law enforcement agency’ is intended to cover a broad range of agencies that have functions that are related to law enforcement.  This is not limited to Police services, but also encompasses other bodies that have functions connected with law enforcement, such as integrity and corruption agencies and also other agencies with investigatory and enforcement powers with respect to Commonwealth and State laws.

Item 8 - Section 4 (definition of serious crime )

Item 8 will insert a definition of ‘serious crime’ for the purposes of subsection 18(3) (amended by item 12).  The term serious crime will replace the term ‘indictable offence’ in current subsection 18(3), as the term ‘indictable offence’ can have slightly different meanings in different jurisdictions.  The definition of ‘serious crime’ is consistent with the definition of ‘serious crime’ in section 3 of the IS Act, meaning an offence punishable by a period of imprisonment that exceeds 12 months. 



Item 9 - Section 4 (definition of staff member )

Item 9 will insert a definition of ‘staff member’.  The item provides that the term ‘staff member’ of a body (however described) includes the head of the body, or another person who holds an office or appointment in relation to the body, and a person who is otherwise a member of staff, an employee, consultant or contractor of the body.  

The definition of staff member of a body is intended to include staff of a broad range of bodies, including agencies, Departments, Police and statutory office holders.  It is intended to capture persons employed by or who work in or for those bodies, regardless of the way such employment or engagement is defined or described in other contexts or other legislation. 

Item 10 - Paragraph 17(1)(b)

Section 17 of the ASIO Act sets out ASIO’s functions, which include, under paragraph 17(1)(b), the communication of information relevant to security ‘for purposes relevant to security and not otherwise’. 

Item 10 removes the phrase ‘and not otherwise’ from paragraph 17(1)(b).  Removal of these words will ensure there is no conflict of laws in the event that another provision authorises ASIO to communicate security intelligence for a non-security related purpose and does not specifically state that it overrides the requirement in paragraph 17(1)(b).

Item 11 - At the end of subsection 17(1)

Item 11 will amend subsection 17(1) to provide ASIO with a specific function to enable it to co-operate with or assist bodies referred to in, and in accordance with, proposed section 19A (inserted by item 17).  This new function should be read in conjunction with proposed section 19A.  This provision is not intended to limit ASIO’s current capacity to co-operate with other bodies in the course of performing ASIO’s existing functions.  The new function will ensure that ASIO is also able to co-operate with and assist other agencies in the performance of the other agencies’ functions.

Item 12 - Subsection 18(3) 

Item 12 repeals subsection 18(3) and replaces it with a new provision.  This proposed new subsection 18(3) will provide that the Director-General or a person acting within the limits of authority conferred on the person by the Director-General, may communicate information that has come into the possession of ASIO in the course of performing its functions, to specified persons in specified circumstances.  The circumstances where information may be communicated are where: 

·       the information relates, or appears to relate, to the commission, or intended commission, of a serious crime; or

·       the Director-General, or a person authorised for the purpose by the Director-General, is satisfied that the national interest requires the communication.

The information may be communicated to an appropriate Minister, authority of the Commonwealth or an authority of a State.  Such a person will be appropriate in the circumstances if the information is communicated for one of the above purposes, and the information relates, or appears to relate, to the functions, responsibilities or duties of the person to whom it is communicated.

These provisions are similar to the current paragraphs 18(3)(a) and (b) of the ASIO Act.  Currently, ASIO may communicate information about an indictable offence to specified law enforcement agencies.  ASIO may also communicate information where the Director-General is satisfied that the national interest requires it, to a range of specified persons and bodies, but only where the information has come into ASIO’s possession outside Australia or concerns matters outside Australia.

The proposed new subsection 18(3) will enable information to be communicated for the above specified purposes to those persons identified in subsection 18(4) (a Minister, staff member of an authority of the Commonwealth or staff member of an authority of a State), where the information relates, or appears to relate, to the performance of the functions, responsibilities or duties of the person.  This approach is intended to provide flexibility to ensure that ASIO is able to provide information to the most appropriate person or body, having regard to their functions.  This will also ensure that where new agencies or bodies are created or existing agencies are conferred with new functions, ASIO’s ability to communicate with them is not restricted by having a narrow list of agencies and bodies with whom it may communicate.

The proposed new subsection 18(3) will remove the limitation in current paragraph 18(3)(b), which only applies to information obtained outside Australia or concerning matters outside Australia.  Such a distinction could prevent the communication of all relevant material concerning a particular matter.  This is unduly restrictive in light of increased cross-border activities of relevance to Australia’s national interests.  The proposed new provision will ensure that where ASIO holds information, and the Director-General or person authorised for that purpose is satisfied that the national interest requires the information to be communicated, that ASIO may communicate all relevant information to the appropriate person or body.    

This item also inserts a note at the end of subsection 18(3) to advise readers of the legislative restrictions on the communication of certain information contained in the Telecommunications (Interception and Access) Act 1979 .

Proposed subsection 18(4)  

Proposed new subsection 18(4) sets out the persons and bodies to whom information may be communicated under subsection 18(3).  This is, a Minister, a staff member of an authority of the Commonwealth or a staff member of an authority of a State.  While this is a broad category of persons, it is limited by the fact that proposed subsection 18(3) only authorises information to be communicated for specified purposes, and the information must be relevant to the functions, responsibilities or duties of the person.  For example, where ASIO obtains information relating to the commission of a serious crime, this information may be communicated to the body that would have responsibility for investigating that crime. 

Proposed subsection 18(4A) 

New subsection 18(4A) provides that the Director-General or a person acting within the limits of authority conferred on the person by the Director-General may communicate information that has come into the possession of ASIO in the course of performing its functions to a staff member of ASIS, DSD or DIGO if the information relates, or appears to relate, to the performance of ASIS, DSD or DIGO’s functions.

This amendment will ensure that ASIO is able to provide information to the other intelligence agencies where the information is, or appears to be, relevant to their functions.  It will also ensure that ASIO is able to provide information to ASIS, DSD and DIGO where ASIO is cooperating with or providing assistance to those agencies under proposed new subsection 19A, though it is not restricted to circumstances where ASIO is cooperating with those agencies. 

Proposed subsection 18(4B) 

Proposed new subsection 18(4B) provides for the communication of information in accordance with an emergency declaration under Part VIA of the Privacy Act 1988 .  Proposed new subsection 18(4B) is intended to replicate the current provision in subsection 18(3)(c).  The changes made by new subsection 18(4B) are intended to update the drafting style for consistency with other provisions amended in this Bill and are not intended to change the operation or meaning of this provision.

Item 13 - Subsection 18(6)

Item 13 repeals subsection 18(6) which provided definitions of ‘Integrity Commissioner’, ‘member of the staff of the ACC’, ‘special investigator’ and ‘staff member of ACLEI’.  These definitions existed in subsection 18(6) for the purposes of subparagraph 18(3)(b).  As subparagraph 18(3)(b) will be repealed and replaced by new subsections 18(3) and 18(4), these definitions are no longer required. 

Item 14 - Subsection 19(1)

Section 19 of the ASIO Act provides that ASIO may co-operate with certain authorities so far as necessary for, or conducive to, the performance of ASIO’s functions.  Item 14 will replace the reference in this section from ‘its’ to ‘the Organisation’s’ functions, to make it clear that the co-operation under subsection 19(1) must relate only to the performance of ASIO’s functions, and not those of the authorities ASIO is co-operating with.

Item 15 - Subsection 19(2) 

Item 15 omits the words ‘Notwithstanding paragraph 17(1)(b)’ from the beginning of subsection 19(2).  These words are no longer required as a result of the redrafting of paragraph 17(1)(b) and the omission in that paragraph of the words ‘and not otherwise’ as outlined in item 10.  The repeal of these words from subsection 19(2) does not change the meaning or operation of that subsection. 

Item 16 - Subsection 19(2) 

Item 16 inserts a new note at the end of subsection 19(2) to advise readers of the legislative restrictions on the communication of certain information contained in the Telecommunications (Interception and Access) Act 1979 .

Item 17 - After section 19

Item 17 will insert a new section 19A into the ASIO Act to enable ASIO to co-operate with and assist ASIS, DSD, DIGO, a law enforcement agency, and prescribed Commonwealth and State authorities, in the performance of their functions.  

ASIO’s co-operation with and assistance to other agencies will be subject to any arrangements made or directions that may be given by the Minister responsible for ASIO.  This will ensure that the Minister has appropriate oversight of co-operation and assistance arrangements and is able to issue directions or make arrangements as the Minister considers appropriate.  The Minister is not required to make arrangements or give directions, but if any arrangements or directions are given, ASIO must comply with them.

ASIO will only be able to co-operate with and assist other agencies under this section at the request of the head of that other agency.  This will ensure that ASIO cannot utilise its functions to co-operate with and assist another agency of its own volition, and can only do so when requested by and agreed with the requesting agency.  The decision to provide co-operation or assistance will be a discretionary matter for ASIO.  Agency heads may make arrangements concerning the details and/or restrictions on particular instances of cooperation or assistance.

Co-operation and assistance is intended to cover a range of scenarios and may include, for example, the provision of:

·       ASIO staff and resources to multi-agency teams and taskforces;

·       ASIO staff or other resources to assist another agency carry out its functions;

·       linguistic, analytical and other technical services;

·       logistical support; and

·       any other resources that ASIO wishes to make available to the particular body in accordance with the requirements of the proposed section.  

In carrying out the proposed new function of co-operating with and assisting other agencies, ASIO must still adhere to the requirements of the ASIO Act.  For example, ASIO will be required to comply with requirements to obtain a warrant if ASIO were to undertake intelligence collection activities to assist another agency perform its functions in a way that would currently require ASIO to obtain a warrant. 



Intelligence Services Act 2001

Item 18 - Section 3 (definition of incidentally obtained intelligence )

Item 18 excludes information obtained solely under proposed paragraph 6(1)(da) from the definition of ‘incidentally obtained intelligence’.  As this definition refers to subsection 6(1) in its entirety, it is necessary to specifically carve out the proposed new paragraph to ensure that information obtained by ASIS solely for the purpose of cooperating with or providing assistance to another agency is not captured by this definition. 

This is consistent with the current exclusion of DIGO’s existing assistance functions under paragraph 6B(e) and DSD’s existing assistance functions under paragraphs 7(c), (d) and (e) from the definition of ‘incidentally obtained intelligence’.  DIGO and DSD’s proposed new cooperation and assistance functions under proposed paragraphs 6B(f) and 7(f) do not need to be specifically excluded as they will not be captured by the definition.

Information that is covered by the definition of ‘incidentally obtained intelligence’ would need to be communicated in accordance with subsection 11(2AA) and in accordance with Privacy Rules made under section 15.  It is necessary to exclude information obtained solely for the purpose of assisting another agency under proposed section 13A to ensure that other provisions of the IS Act do not lead to a situation where information could be collected for the sole purpose of assisting another agency but may not be able to be communicated to that agency. 

Item 19 - Section 3 (definition of intelligence information )

Item 19 excludes information obtained solely under proposed paragraph 6(1)(da) from the definition of ‘intelligence information’.  As this definition refers to subsection 6(1) in its entirety, it is necessary to specifically carve out the proposed new paragraph to ensure that information obtained by ASIS solely for the purpose of cooperating with or providing assistance to another agency is not captured by this definition. 

This is consistent with the current exclusion of DIGO’s existing assistance functions under paragraph 6B(e) and DSD’s existing assistance functions under paragraphs 7(c), (d) and (e) from the definition of ‘intelligence information’.  DIGO and DSD’s proposed new cooperation and assistance functions under proposed paragraphs 6B(f) and 7(f) do not need to be specifically excluded as they will not be captured by the definition.

Information that is covered by the definition of ‘intelligence information’ would need to be communicated in accordance with Privacy Rules made under section 15.  It is necessary to exclude information obtained solely for the purpose of assisting another agency under proposed section 13A to ensure that other provisions of the IS Act do not lead to a situation where information could be collected for the sole purpose of assisting another agency but may not be able to be communicated to that agency. 

Item 20 - After paragraph 6(1)(d)

Item 20 will amend subsection 6(1) to provide ASIS with a specific function to enable it to co-operate with and assist bodies referred to in, and in accordance with, proposed section 13A (inserted by item 27).  This new function should be read in conjunction with proposed section 13A.  This provision is not intended to limit ASIS’s current capacity to co-operate with and assist other bodies in the course of performing ASIS’s existing functions.  The new function will ensure that ASIS is also able to co-operate and assist other agencies in the performance of the other agencies’ functions.

Item 21 - At the end of section 6B

Item 21 will amend section 6B to provide DIGO with a specific function to enable it to co-operate with and assist bodies referred to in, and in accordance with, proposed section 13A (inserted by item 27).  This new function should be read in conjunction with proposed section 13A.  This provision is not intended to limit DIGO’s current capacity to co-operate with and assist other bodies in the course of performing DIGO’s existing functions.  The new function will ensure that DIGO is also able to co-operate and assist other agencies in the performance of the other agencies’ functions.

Item 22 - At the end of section 7

Item 22 will amend section 7 to provide DSD with a specific function to enable it to co-operate with and assist bodies referred to in, and in accordance with, proposed section 13A (inserted by item 27).  This new function should be read in conjunction with proposed section 13A.  This provision is not intended to limit DSD’s current capacity to co-operate with and assist other bodies in the course of performing DSD’s existing functions.  The new function will ensure that DSD is also able to co-operate and assist other agencies in the performance of the other agencies’ functions.

Items 23, 24 and 25 - Paragraphs 11(2)(d), 11(2)(e) and 11(2)(f)

Subsection 11(2) of the IS Act places limits on ASIS, DIGO or DSD’s (agencies) functions by specifying that these agencies’ functions do not include the carrying out of Police functions, or any other responsibility for the enforcement of the law.  Subsection 11(2) also specifies, for the avoidance of doubt, that while the agencies are not to carry out Police functions, they are able to co-operate and assist Police in accordance with their functions.  Consistent with the existing provisions, items 23, 24 and 25 will amend paragraphs 11(2)(d), 11(2)(e) and 11(2)(f) of the IS Act to ensure that ASIS, DIGO and DSD are not prevented from performing their new functions (inserted by items 20, 21 and 22) of co-operating with and assisting bodies referred to in, and in accordance with, proposed section 13A (inserted by item 27). 

Item 26 - Subsection 11(3)

Item 26 will provide that the limitations in subsection 11(1) of the IS Act do not apply to the proposed new cooperation functions of the agencies (inserted by items 20, 21 and 22). 

Subsection 11(1) of the IS Act provides that the functions of the agencies are only to be performed ‘in the interests of Australia’s national security, Australia’s foreign relations or Australia’s national economic well-being, and only to the extent that those matters are affected by the capabilities, intentions or activities of people or organisations outside Australia’.  The proposed new cooperation and assistance functions are intended to enable the agencies to assist other agencies in the performance of the other agencies’ functions, which may not be limited to the matters specified in subsection 11(1).  Therefore, this item will ensure that agencies have sufficient flexibility to co-operate with and assist the bodies referred to in proposed section 13A.  This is consistent with the current operation of subsection 11(3) of the IS Act, which provides that subsection 11(1) of the IS Act does not apply to the other assistance functions of DIGO and DSD. 

Item 27 - After section 13

Item 27 will insert new section 13A into the IS Act to enable ASIS, DSD and DIGO to co-operate with and assist each other, ASIO and other prescribed Commonwealth and State authorities, in the performance of their functions. 

Agencies’ co-operation and assistance with other agencies will be subject to any arrangements made or directions that may be given by the Minister responsible for the agency.  This will ensure that the Minister has appropriate oversight of co-operation and assistance arrangements and is able to issue directions or make arrangements to ensure that agencies’ co-operation and assistance is appropriate.  The responsible Minister is not required to make arrangements or give directions, but if any arrangements or directions are given, the agency must comply with them.

A note clarifies that ministerial directions are subject to the requirements of section 32B of the Inspector-General of Intelligence and Security Act 1986 , which requires that the Minister give a copy of a direction to the Inspector-General of Intelligence and Security as soon as practicable after the direction is given.

Agencies will only be able to co-operate with and assist another agency at the request of the head of that agency.  This will ensure that agencies cannot utilise their functions to co-operate with and assist another agency of their own volition, and can only do so when requested by and agreed with the requesting agency.  The decision to provide co-operation or assistance will be a discretionary matter for the agency receiving a request for assistance.  Agency heads may make arrangements concerning the details and/or restrictions on particular instances of cooperation or assistance.

·       Co-operation and assistance is intended to cover a range of scenarios and may include, for example, the provision of agency staff and resources to multi-agency teams and taskforces;

·       agency staff or other resources to assist another agency carry out its functions;

·       linguistic, analytical and other technical services;

·       logistical support; and

·       any other resources that ASIS, DSD or DIGO wishes to make available to the particular body in accordance with the requirements of the proposed section.  

In carrying out the proposed new function of co-operating with and assisting other agencies, ASIS, DSD and DIGO must still adhere to the requirements of the IS Act.  For example, ASIS, DSD and DIGO will retain their obligation to obtain a Ministerial Authorisation under section 8 of the IS Act when they undertake an activity for the purpose of collecting new intelligence on an Australian person even if they are solely performing the activity for the purpose of assisting another agency under proposed section 13A. 



Telecommunications (Interception and Access) Act 1979

Item 28 - Subsections 65(1) and 137(1)

Item 28 omits the reference to ‘paragraph 18(3)(a) or (b)’ and substitutes this reference with ‘subsection 18(3) or (4A) or subsection 19A(4)’.  This is a consequential amendment necessitated by the repeal of paragraphs 18(3)(a) and (b) and the substitution of those with provisions in subsections 18(3), (4A) and subsection 19A(4).

Item 29 - Application of amendments relating to communication of information

Item 29 provides that the amendments made by this Schedule relating to the communication of information by ASIO apply in relation to any information, whether the information comes into ASIO’s possession before or after this Schedule commences. 

This provision ensures that these provisions apply to existing information held by ASIO, and that ASIO is not restricted to communicating information only obtained upon commencement of these provisions.



Schedule 7 - Amendments to section 5 of the Telecommunications (Interception and Access) Act 1979

Telecommunications (Interception and Access) Act 1979

Schedule 7 amends several definitions contained in section 5 of the Telecommunications (Interception and Access) Act 1979 (TIA Act) to restructure the section in a more logical order and to correct minor errors. 

Items 1 and 7 - Subsection 5(1) (definition of Director-General of Security and definition of the Director-General of Security )

Item 1 inserts a new definition of ‘Director-General of Security’ identical to the existing definition of ‘the Director-General of Security’. This amendment means the definition will be easier to find as it will be located alphabetically under ‘D’ rather than ‘T’ consistent with the ordering of other definitions in the TIA Act.

Item 7 repeals the term ‘the Director-General of Security’.

Item 2 - Subsection 5(1) (paragraph (b) of the definition of Enforcement Agency )

Item 2 amends the definition of ‘enforcement agency’ in the TIA Act so that it refers to ‘a Police Force of a State’ rather than ‘a police force or service of a State’.  The latter definition was transferred from the Telecommunications Act 1997 following the transfer of then section 282 of the Telecommunications Act to the new provisions of Chapter 4 of the TIA Act. 

The amendment reflects the fact that the wording of the definition from the Telecommunications Act is not consistent with other references to Police Forces in the TIA Act. The amendment will ensure consistency across the TIA Act and does not affect the authority of any warrants issued or authorisations made under the TIA Act.

Items 3 and 4 - Subsection 5(1) (definition of member of the staff of the Policy Integrity Commission )

Item 3 corrects a typographical error.  Currently, the TIA Act defines the term ‘member of the staff of the Policy Integrity Commission rather than the correct term ‘member of the staff of the Police Integrity Commission’.  The incorrect reference to Policy Integrity Commission has had no impact on the operation of the TIA Act, nor the legality of any action undertaken by the Police Integrity Commission.

Item 4 repeals the incorrect term ‘member of the staff of the Policy Integrity Commission’ which is replaced by item 3.

Item 5 - Subsection 5(1) (subparagraph (h)(iii) of the definition of officer )

Item 5 corrects a consequential typographical error to the definition of ‘officer’ in the TIA Act which occurred as a result of the insertion of the definition of ‘member of staff of the Policy Integrity Commission’.  It replaces the word ‘Policy’ at subparagraph 5(1)(h)(ii) of the definition of ‘officer’ with the word ‘Police’.

 

Items 6 and 8 - Subsection 5(1) (definition of Organisation and the Organisation )

Item 6 inserts a new definition of ‘Organisation’.  Currently section 5 includes a definition of ‘the Organisation’, meaning the definition is located alphabetically under ‘T’.  This amendment means that the definition will be more logically located under ‘O’.  

Item 8 repeals the definition of the ‘the Organisation’ consequential to item 6.