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Telecommunications Interception and Intelligence Services Legislation Amendment Bill 2011

Schedule 1 Exercise of warrant powers

   

Telecommunications (Interception and Access) Act 1979

1  Paragraph 52(1)(a)

Omit “forthwith”, substitute “immediately”.

2  Subsection 52(2)

Omit “cause a copy of the instrument of revocation to be given as soon as practicable”, substitute “, as soon as practicable, give a copy of the instrument of revocation”.

3  Subsection 52(3)

Repeal the subsection, substitute:

             (3)  If:

                     (a)  a warrant has been issued to an agency; and

                     (b)  another agency or the Organisation is exercising authority under that warrant (see section 55); and

                     (c)  the warrant is revoked under subsection (1);

the chief officer of the agency to which the warrant was issued must:

                     (d)  immediately inform the chief officer of the other agency or the Director-General of Security (as the case requires) of the revocation; and

                     (e)  give a copy of the instrument of revocation to the person referred to in paragraph (d) as soon as practicable.

4  Subsection 55(1)

Omit “an officer or staff member of an agency”, substitute “a person”.

5  Subsection 55(3)

Repeal the subsection, substitute:

             (3)  The chief officer of an agency, or an officer of an agency in relation to whom an appointment under subsection (4) is in force, may approve any of the following persons to exercise the authority conferred by warrants (or classes of warrants) issued to the agency:

                     (a)  officers (or classes of officers) of the agency or another agency;

                     (b)  staff members (or classes of staff members) of the agency or another agency;

                     (c)  officers or employees (or classes of officers or employees) of the Organisation;

                     (d)  persons assisting the Organisation in the performance of its functions.

6  Subsection 55(5)

Omit “an officer or staff member of an agency”, substitute “a person”.

7  At the end of section 55

Add:

             (8)  To avoid doubt, the Organisation exercises authority under a warrant even if a person assisting the Organisation in the performance of its functions, who is not an officer or employee of the Organisation, is approved to exercise that authority under paragraph (3)(d).

8  Subsections 57(1), (2) and (3)

Repeal the subsections, substitute:

             (1)  The chief officer of an agency:

                     (a)  may, at any time, by signed writing, revoke a warrant issued to the agency; and

                     (b)  must do so, if he or she is satisfied that the grounds on which the warrant was issued to the agency have ceased to exist.

             (2)  If another agency or the Organisation is exercising authority under the warrant, then before revoking the warrant, the chief officer must inform the chief officer of the other agency or the Director-General of Security (as the case requires) of the proposed revocation.

             (3)  After revoking the warrant, the chief officer must:

                     (a)  if subsection (2) applies—immediately inform the chief officer of the other agency or the Director-General of Security (as the case requires) of the revocation; and

                     (b)  in any case—give a copy of the instrument of revocation to the Secretary of the Department as soon as practicable.

9  Subsection 57(4)

Omit “subsection (2)”, substitute “paragraph (1)(a)”.

10  Subsection 58(1)

Omit “forthwith”, substitute “immediately”.

11  Subsection 58(2)

After “agency” (first occurring), insert “or the Director-General of Security”.

12  Subsection 58(2)

Omit “the chief officer of the agency shall forthwith”, substitute “he or she must immediately”.

13  Subsection 58(2)

After “agency” (third occurring), insert “or the Organisation (as the case requires)”.

14  Section 59

Omit “or (2)”.

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

Omit “forthwith”, substitute “immediately”.

16  After subsection 61(4)

Insert:

          (4A)  A certifying person may issue a written certificate signed by him or her setting out such facts as he or she considers relevant with respect to:

                     (a)  anything done by a person referred to in paragraph 55(3)(c) or (d) in connection with the execution of a Part 2-5 warrant; or

                     (b)  anything done by a person referred to in paragraph 55(3)(c) or (d) in connection with:

                              (i)  the communication by a person to another person of; or

                             (ii)  the making use of; or

                            (iii)  the making of a record of; or

                            (iv)  the custody of a record of; or

                             (v)  the giving in evidence of;

                            information obtained by the execution of such a warrant.

17  Subsection 61(5)

Repeal the subsection, substitute:

             (5)  A document purporting to be a certificate issued under subsection (4) or (4A) by a certifying officer of an agency, or a certifying person, and to be signed by him or her:

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

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

18  At the end of section 64

Add:

             (3)  Subsections (1) and (2) do not apply to information:

                     (a)  obtained by a person referred to in paragraph 55(3)(c) or (d) by intercepting a communication when exercising authority under a warrant issued to an agency; or

                     (b)  communicated, in accordance with section 66, to a person referred to in paragraph 55(3)(c); or

                     (c)  that is interception warrant information in relation to a warrant issued to an agency;

unless the information has been communicated to the Director-General of Security under section 68.

             (4)  However, a person referred to in paragraph 55(3)(c) or (d) may communicate to another person, make use of, or make a record of information referred to in paragraph (3)(a), (b) or (c) of this section, that has not been communicated to the Director-General of Security under section 68, for a purpose or purposes connected with the investigation to which the warrant, under which the information was obtained, relates, and for no other purpose.

19  At the end of section 65

Add:

             (3)  Subsections (1) and (2) do not apply to information:

                     (a)  obtained by a person referred to in paragraph 55(3)(c) or (d) by intercepting a communication when exercising authority under a warrant issued to an agency; or

                     (b)  communicated, in accordance with section 66, to a person referred to in paragraph 55(3)(c); or

                     (c)  that is interception warrant information in relation to a warrant issued to an agency;

unless the information has been communicated to the Director-General of Security under section 68.

Note:          See subsection 64(4) for when the Director-General of Security may communicate information, referred to in paragraph (3)(a), (b) or (c) of this section, that has not been communicated under section 68.

20  Paragraph 66(1)(b)

Repeal the paragraph, substitute:

                     (b)  a person in relation to whom an authorisation under subsection (2) is in force in relation to the warrant.

Note:       The heading to section 66 is altered by omitting “ agency to which warrant was issued ” and substituting “ officer who applied for warrant or authorised person ”.

21  Subsection 66(2)

Repeal the subsection, substitute:

             (2)  The chief officer of an agency, or an authorising officer of an agency for whom an appointment under subsection (4) is in force, may authorise in writing a person (or class of person) referred to in any of paragraphs 55(3)(a) to (c) to receive information obtained by interceptions under warrants (or classes of warrants) issued to the agency.

             (3)  The chief officer, or an authorising officer, of an agency may make an authorisation under subsection (2) in relation to a person (or class of person) who is not an officer or staff member of that agency only for a purpose or purposes connected with an investigation to which a warrant issued to that agency relates.

             (4)  The chief officer of an agency may appoint in writing an officer of the agency to be an authorising officer for the purposes of this section.

22  After subsection 67(1)

Insert:

          (1A)  Subsection (1) does not apply to information:

                     (a)  obtained by an officer or staff member of an agency by intercepting a communication when exercising authority under a warrant issued to another agency; or

                     (b)  communicated to an officer or staff member of an agency in accordance with section 66, where the information was obtained by intercepting a communication under a warrant issued to another agency; or

                     (c)  that is interception warrant information in relation to a warrant issued to another agency;

unless the information has been communicated to an officer of the agency under section 68.

          (1B)  However, an officer or staff member of an agency may communicate to another person, make use of, or make a record of information referred to paragraph (1A)(a), (b) or (c), that has not been communicated to an officer of the agency under section 68, for a purpose or purposes connected with the investigation to which the warrant, under which the information was obtained, relates, and for no other purpose.

23  After subsection 81(2)

Insert:

          (2A)  If:

                     (a)  the Organisation is exercising the authority conferred by a Part 2-5 warrant issued to a Commonwealth agency; and

                     (b)  the Commonwealth agency does not have the particulars referred to in subparagraph (1)(c)(ii), (iii) or (iv), or paragraph (1)(d);

the Director-General of Security must:

                     (c)  cause those particulars to be recorded in accordance with subsections (1) and (2); and

                     (d)  give the records produced to the chief officer of the Commonwealth agency to which the Part 2-5 warrant was issued.

24  Subsection 81(3)

After “caused to be made”, insert “, or is given,”.

25  After section 81

Insert:

81AA   Organisation to record particulars in relation to eligible authorities of a State

                   If:

                     (a)  the Organisation is exercising the authority conferred by a Part 2-5 warrant issued to an eligible authority of a State; and

                     (b)  the eligible authority does not have the particulars referred to in subparagraph 81(1)(c)(ii), (iii) or (iv), or paragraph 81(1)(d);

the Director-General of Security must:

                     (c)  cause those particulars to be recorded in accordance with subsections 81(1) and (2); and

                     (d)  give the records produced to the chief officer of the eligible authority to which the Part 2-5 warrant was issued.

26  After paragraph 103(ac)

Insert:

                  (aca)  the number (if any) of interceptions carried out by the Organisation on behalf of:

                              (i)  each Commonwealth agency; and

                             (ii)  each eligible authority of a State, where the eligible authority was an agency at any time during the year to which the report relates; and

27  Subsections 127(1) and (2)

Repeal the subsections, substitute:

             (1)  The authority conferred by a stored communications warrant may only be exercised by a person in relation to whom an approval under subsection (2) is in force in relation to the warrant.

             (2)  The chief officer of an enforcement agency, or an officer of an enforcement agency in relation to whom an appointment under subsection (3) is in force, may approve any of the following persons to exercise the authority conferred by warrants (or classes of warrants) issued to the agency:

                     (a)  officers (or classes of officers) of the agency or another enforcement agency;

                     (b)  staff members (or classes of staff members) of the agency or another enforcement agency.

28  Saving provision in relation to items 5 and 27

The amendments made by items 5 and 27 of this Schedule do not affect the validity of any approval given under subsection 55(3) or 127(2) of the Telecommunications (Interception and Access) Act 1979 before this Schedule commences.

29  Saving provision in relation to item 9

(1)       This item applies to a delegation if:

                     (a)  the delegation was made under subsection 57(4) of the Telecommunications (Interception and Access) Act 1979 in relation to the power of the chief officer of an agency to revoke a warrant under subsection 57(2) of that Act; and

                     (b)  the delegation was in force immediately before this Schedule commences.

(2)       The delegation has effect, after this Schedule commences, as if it had been made under subsection 57(4) of that Act in relation to the power of the chief officer of the agency to revoke a warrant under paragraph 57(1)(a) of that Act, as amended by this Act.