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Cybercrime Legislation Amendment Bill 2011

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7143

2010-2011-2012

 

The Parliament of the

Commonwealth of Australia

 

THE SENATE

 

 

 

 

Cybercrime Legislation Amendment Bill 2011

 

 

(1)     Clause  2 , page 2 (after table item  1 ), insert:

1A.  Schedule 1, items 1 to 33

The day after the end of the period of 3 months beginning on the day this Act receives the Royal Assent.

 

1B.  Schedule 1, item 34

The day this Act receives the Royal Assent.

 

[stored communications]

( 2 )     Clause  2 , page 2 (table item  2 , 1st column), omit “ Schedules 1 and 2 ”, substitute “ Schedule 2 ”.

[stored communications]

(3)     Schedule  1 , page 20 (after line 6) , after item  30 , insert:

30A  After paragraph 152(a)

Insert:

                   (ab)  to inspect an enforcement agency’s records in order to ascertain, so far as is practicable, the extent of compliance with this Chapter; and

[ombudsman’s role]

( 4 )     Schedule  1 , page 21 (after line 14) , at the end of the Schedule, add:

34  Transitional provision—temporary exemption from compliance with preservation notices

(1)       The Communications Access Co-ordinator may exempt a carrier from the obligation to comply with sections 107H and 107N of the Telecommunications (Interception and Access) Act 1979 (as inserted by this Schedule) if the carrier makes an application to the Communications Access Co-ordinator for an exemption under subitem (2).

(2)       An application must:

                     (a)  be in writing; and

                     (b)  be received by the Communications Access Co-ordinator before the day item 1 of this Schedule commences; and

                     (c)  specify the period (not exceeding 15 months from the day item 1 of this Schedule commences) for which the exemption is requested; and

                     (d)  include an implementation plan setting out:

                              (i)  the changes or developments the carrier considers that it needs to implement in its telecommunications systems and networks in order to comply with domestic preservation notices and foreign preservation notices; and

                             (ii)  the processes and procedures that the carrier proposes to implement to make the changes or to undertake the developments necessary to comply (including, but not limited to, information on build, installation, configuration, integration, delivery and testing); and

                            (iii)  the timeline for implementation of the changes and developments; and

                            (iv)  any other matters that the carrier considers relevant.

(3)       In deciding whether to grant a carrier an exemption under subitem (1), the Communications Access Co-ordinator must have regard to the following matters:

                     (a)  any information contained in the exemption application, including the implementation plan;

                     (b)  the technical feasibility of the carrier being able to comply with domestic preservation notices and foreign preservation notices without making the changes or undertaking the developments set out in the carrier’s implementation plan.

(4)       Subitem (3) does not limit the matters to which the Communications Access Co-ordinator may have regard in determining whether to grant an exemption under subitem (1).

(5)       Before making a decision whether to grant an exemption under subitem (1), the Communications Access Co-ordinator must consult with the carrier and the ACMA.

(6)       If a carrier makes an application under subitem (2) and the Communications Access Co-ordinator has not made a decision on the application, and communicated that decision to the carrier, within 90 days after receiving the application, the Communications Access Co-ordinator is taken to have granted an exemption to the carrier under subitem (1) for the period specified in the application.

(7)       If a carrier makes an application under subitem (2), the carrier is exempt from complying with sections 107H and 107N of the Telecommunications (Interception and Access) Act 1979 (as inserted by this Schedule) for each day falling on or between:

                     (a)  the day item 1 of this Schedule commences; and

                     (b)  the day the Communications Access Co-ordinator makes (or is taken to have made) a decision on the application.

(8)       A carrier may make an application to the ACMA for a review of a decision by the Communications Access Co-ordinator to refuse to grant an exemption under subitem (1).

(9)       An application for review must be made within 21 days after the Communications Access Co-ordinator notifies the carrier of the refusal to grant an exemption.

(10)     The ACMA may affirm, vary or set aside the decision to refuse to grant an exemption.

[preservation notices]

(5)     Schedule  2 , item  41 , page 32 (after line 13) , after paragraph 180A ( 5 )( a ), insert:

                   (ab)  if the disclosure is in relation to a prosecution or punishment of a person charged with, or convicted of, an offence in respect of which the death penalty may be imposed in a foreign country—the foreign country has given an assurance that the death penalty will not be imposed in relation to that person for that offence; and

[authorisations for access to telecommunications data]

(6)     Schedule  2 , item  41 , page 32 (after line 14) , at the end of section  180A , add:

             (6)  In considering whether the disclosure is appropriate in all the circumstances for the purposes of paragraph (5)(b), the authorised officer must have regard to the grounds for refusing a request for assistance covered by section 8 of the Mutual Assistance in Criminal Matters Act 1987 .

[authorisations for access to telecommunications data]

(7)     Schedule  2 , item  41 , page 34 (after line 22) , after paragraph 180C (2)( a ), insert:

                   (ab)  if the disclosure is in relation to a prosecution or punishment of a person charged with, or convicted of, an offence in respect of which the death penalty may be imposed in a foreign country—the foreign country has given an assurance that the death penalty will not be imposed in relation to that person for that offence; and

[authorisations for access to telecommunications data]

(8)     Schedule  2 , item  41 , page 34 (after line 23) , at the end of section  180C , add:

             (3)  In considering whether the disclosure is appropriate in all the circumstances for the purposes of paragraph (2)(b), the authorised officer must have regard to the grounds for refusing a request for assistance covered by section 8 of the Mutual Assistance in Criminal Matters Act 1987 .

[authorisations for access to telecommunications data]

(9)     Schedule  2 , page 39 (after line 19) , at the end of the Schedule, add:

Part 4—Refusal of assistance

Mutual Assistance in Criminal Matters Act 1987

57  After paragraph 8(2)(f)

Insert:

                    (fa)  the foreign country’s arrangements for handling personal information (within the meaning of the Privacy Act 1988 ) do not offer a level of privacy protection similar to that afforded in Australia; or

[refusal of assistance]