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Schedule 1—Industry assistance

Schedule 1 Industry assistance

Part 1 Amendments

Administrative Decisions (Judicial Review) Act 1977

1  After paragraph (daaa) of Schedule 1

Insert:

              (daaaa)  decisions under Part 15 of the Telecommunications Act 1997 ;

Criminal Code Act 1995

2  After subsection 474.6(7) of the Criminal Code

Insert:

          (7A)  A person is not criminally responsible for an offence against subsection (5) if the conduct of the person:

                     (a)  is in accordance with a technical assistance request; or

                     (b)  is in compliance with a technical assistance notice; or

                     (c)  is in compliance with a technical capability notice.

3  After subparagraph 476.2(4)(b)(iii) of the Criminal Code

Insert:

                       or (iv)  in accordance with a technical assistance request; or

                             (v)  in compliance with a technical assistance notice; or

                            (vi)  in compliance with a technical capability notice;

4  Dictionary in the Criminal Code

Insert:

technical assistance notice has the same meaning as in Part 15 of the Telecommunications Act 1997 .

technical assistance request has the same meaning as in Part 15 of the Telecommunications Act 1997 .

technical capability notice has the same meaning as in Part 15 of the Telecommunications Act 1997 .

Telecommunications Act 1997

5  Section 7

Insert:

ASIO means the Australian Security Intelligence Organisation.

6  Section 7 (paragraph (a) of the definition of civil penalty provision )

After “this Act” (first occurring), insert “(other than section 317ZB)”.

7  After Part 14

Insert:

Part 15 Industry assistance

Division 1 Introduction

317A   Simplified outline of this Part

•      The Director-General of Security, the Director-General of the Australian Secret Intelligence Service, the Director-General of the Australian Signals Directorate or the chief officer of an interception agency may give a technical assistance request to a designated communications provider.

•      A technical assistance request may ask the provider to do acts or things on a voluntary basis that are directed towards ensuring that the provider is capable of giving certain types of help to ASIO, the Australian Secret Intelligence Service, the Australian Signals Directorate or an interception agency in relation to:

       (a)     enforcing the criminal law and laws imposing pecuniary penalties; or

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

       (c)     the interests of Australia’s national security, the interests of Australia’s foreign relations or the interests of Australia’s national economic well-being.

•      A technical assistance request may ask the provider to give help to ASIO, the Australian Secret Intelligence Service, the Australian Signals Directorate or an interception agency on a voluntary basis in relation to:

       (a)     enforcing the criminal law and laws imposing pecuniary penalties; or

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

       (c)     the interests of Australia’s national security, the interests of Australia’s foreign relations or the interests of Australia’s national economic well-being.

•      The Director-General of Security or the chief officer of an interception agency may give a designated communications provider a notice, to be known as a technical assistance notice, that requires the provider to do acts or things by way of giving help to ASIO or the agency in relation to:

       (a)     enforcing the criminal law and laws imposing pecuniary penalties; or

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

       (c)     safeguarding national security.

•      The Attorney-General may give a designated communications provider a notice, to be known as a technical capability notice.

•      A technical capability notice may require the provider to do acts or things directed towards ensuring that the provider is capable of giving certain types of help to ASIO or an interception agency in relation to:

       (a)     enforcing the criminal law and laws imposing pecuniary penalties; or

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

       (c)     safeguarding national security.

•      A technical capability notice may require the provider to do acts or things by way of giving help to ASIO or an interception agency in relation to:

       (a)     enforcing the criminal law and laws imposing pecuniary penalties; or

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

       (c)     safeguarding national security.

317B   Definitions

                   In this Part:

access , when used in relation to material, includes:

                     (a)  access that is subject to a pre-condition (for example, the use of a password); and

                     (b)  access by way of push technology; and

                     (c)  access by way of a standing request.

ASIO affiliate has the same meaning as in the Australian Security Intelligence Organisation Act 1979 .

ASIO employee has the same meaning as in the Australian Security Intelligence Organisation Act 1979 .

chief officer of an interception agency has the meaning given by section 317ZM.

contracted service provider , in relation to a designated communications provider, means a person who performs services for or on behalf of the provider, but does not include a person who performs such services in the capacity of an employee of the provider.

Corruption and Crime Commission (WA) means the Corruption and Crime Commission established by the Corruption, Crime and Misconduct Act 2003 (WA).

designated communications provider has the meaning given by section 317C.

electronic service has the meaning given by section 317D.

eligible activities of a designated communications provider has the meaning given by section 317C.

entrusted ASD person means a person who:

                     (a)  is a staff member of the Australian Signals Directorate; or

                     (b)  has entered into a contract, agreement or arrangement with the Australian Signals Directorate; or

                     (c)  is an employee or agent of a person who has entered into a contract, agreement or arrangement with the Australian Signals Directorate.

entrusted ASIO person means an entrusted person (within the meaning of the Australian Security Intelligence Organisation Act 1979 ).

entrusted ASIS person means a person who:

                     (a)  is a staff member or agent of the Australian Secret Intelligence Service; or

                     (b)  has entered into a contract, agreement or arrangement with the Australian Secret Intelligence Service; or

                     (c)  is an employee or agent of a person who has entered into a contract, agreement or arrangement with the Australian Secret Intelligence Service.

giving help :

                     (a)  when used in relation to ASIO—includes giving help to an ASIO employee or an ASIO affiliate; or

                     (b)  when used in relation to the Australian Secret Intelligence Service—includes giving help to a staff member of the Australian Secret Intelligence Service; or

                     (c)  when used in relation to the Australian Signals Directorate—includes giving help to a staff member of the Australian Signals Directorate; or

                     (d)  when used in relation to an interception agency—includes giving help to an officer of the agency.

IGIS official has the same meaning as in the Australian Security Intelligence Organisation Act 1979 .

Independent Broad-based Anti-corruption Commission of Victoria means the Independent Broad-based Anti-corruption Commission established by the Independent Broad-based Anti-corruption Commission Act 2011 (Vic).

Independent Commissioner Against Corruption (SA) means the person who is the Commissioner (within the meaning of the Independent Commissioner Against Corruption Act 2012 (SA)).

interception agency means:

                     (a)  the Australian Federal Police; or

                     (b)  the Australian Commission for Law Enforcement Integrity; or

                     (c)  the Australian Crime Commission; or

                     (d)  the Police Force of a State or the Northern Territory; or

                     (e)  the Independent Commission Against Corruption of New South Wales; or

                      (f)  the New South Wales Crime Commission; or

                     (g)  the Law Enforcement Conduct Commission of New South Wales; or

                     (h)  the Independent Broad-based Anti-corruption Commission of Victoria; or

                      (i)  the Crime and Corruption Commission of Queensland; or

                      (j)  the Independent Commissioner Against Corruption (SA); or

                     (k)  the Corruption and Crime Commission (WA).

Law Enforcement Conduct Commission of New South Wales means the Law Enforcement Conduct Commission constituted by the Law Enforcement Conduct Commission Act 2016 (NSW).

listed act or thing has the meaning given by section 317E.

material means material:

                     (a)  whether in the form of text; or

                     (b)  whether in the form of data; or

                     (c)  whether in the form of speech, music or other sounds; or

                     (d)  whether in the form of visual images (moving or otherwise); or

                     (e)  whether in any other form; or

                      (f)  whether in any combination of forms.

member of the staff of the Independent Commissioner Against Corruption (SA) means a person who is engaged under subsection 12(1) of the Independent Commissioner Against Corruption Act 2012 (SA).

officer of an interception agency has the meaning given by section 317ZM.

staff member , when used in relation to the Australian Secret Intelligence Service or the Australian Signals Directorate, has the same meaning as in the Intelligence Services Act 2001 .

supply :

                     (a)  when used in relation to:

                              (i)  a facility; or

                             (ii)  customer equipment; or

                            (iii)  a component;

                            includes supply (including re-supply) by way of sale, exchange, lease, hire or hire-purchase; and

                     (b)  when used in relation to software—includes provide, grant or confer rights, privileges or benefits.

technical assistance notice means a notice given under section 317L.

technical assistance notice information means:

                     (a)  information about any of the following:

                              (i)  the giving of a technical assistance notice;

                             (ii)  the existence or non-existence of a technical assistance notice;

                            (iii)  the variation of a technical assistance notice;

                            (iv)  the revocation of a technical assistance notice;

                             (v)  the requirements imposed by a technical assistance notice;

                            (vi)  any act or thing done in compliance with a technical assistance notice; or

                     (b)  any other information about a technical assistance notice.

technical assistance request means a request under paragraph 317G(1)(a).

technical assistance request information means:

                     (a)  information about any of the following:

                              (i)  the giving of a technical assistance request;

                             (ii)  the existence or non-existence of a technical assistance request;

                            (iii)  the acts or things covered by a technical assistance request;

                            (iv)  any act or thing done in accordance with a technical assistance request; or

                     (b)  any other information about a technical assistance request.

technical capability notice means a notice given under section 317T.

technical capability notice information means:

                     (a)  information about any of the following:

                              (i)  the giving of a technical capability notice;

                             (ii)  consultation relating to the giving of a technical capability notice;

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

                            (iv)  the variation of a technical capability notice;

                             (v)  the revocation of a technical capability notice;

                            (vi)  the requirements imposed by a technical capability notice;

                           (vii)  any act or thing done in compliance with a technical capability notice; or

                     (b)  any other information about a technical capability notice.

317C   Designated communications provider etc.

                   For the purposes of this Part, the following table defines:

                     (a)  designated communications provider ; and

                     (b)  the eligible activities of a designated communications provider.

 

Designated communications provider and eligible activities

Item

A person is a designated communications provider if ...

... and the eligible activities of the person are ...

1

the person is a carrier or carriage service provider

(a) the operation by the person of telecommunications networks, or facilities, in Australia; or

(b) the supply by the person of listed carriage services

2

the person is a carriage service intermediary who arranges for the supply by a carriage service provider of listed carriage services

(a) the arranging by the person for the supply by the carriage service provider of listed carriage services; or

(b) the operation by the carriage service provider of telecommunications networks, or facilities, in Australia; or

(c) the supply by the carriage service provider of listed carriage services

3

the person provides a service that facilitates, or is ancillary or incidental to, the supply of a listed carriage service

the provision by the person of a service that facilitates, or is ancillary or incidental to, the supply of a listed carriage service

4

the person provides an electronic service that has one or more end-users in Australia

the provision by the person of an electronic service that has one or more end-users in Australia

5

the person provides a service that facilitates, or is ancillary or incidental to, the provision of an electronic service that has one or more end-users in Australia

the provision by the person of a service that facilitates, or is ancillary or incidental to, the provision of an electronic service that has one or more end-users in Australia

6

the person develops, supplies or updates software used, for use, or likely to be used, in connection with:

(a) a listed carriage service; or

(b) an electronic service that has one or more end-users in Australia

(a) the development by the person of any such software; or

(b) the supply by the person of any such software; or

(c) the updating by the person of any such software

7

the person manufactures, supplies, installs, maintains or operates a facility

(a) the manufacture by the person of a facility for use, or likely to be used, in Australia; or

(b) the supply by the person of a facility for use, or likely to be used, in Australia; or

(c) the installation by the person of a facility in Australia; or

(d) the maintenance by the person of a facility in Australia; or

(e) the operation by the person of a facility in Australia

8

the person manufactures or supplies components for use, or likely to be used, in the manufacture of a facility for use, or likely to be used, in Australia

(a) the manufacture by the person of any such components; or

(b) the supply by the person of any such components

9

the person connects a facility to a telecommunications network in Australia

the connection by the person of a facility to a telecommunications network in Australia

10

the person manufactures or supplies customer equipment for use, or likely to be used, in Australia

(a) the manufacture by the person of any such customer equipment; or

(b) the supply by the person of any such customer equipment

11

the person manufactures or supplies components for use, or likely to be used, in the manufacture of customer equipment for use, or likely to be used, in Australia

(a) the manufacture by the person of any such components; or

(b) the supply by the person of any such components

12

the person:

(a) installs or maintains customer equipment in Australia; and

(b) does so otherwise than in the capacity of end-user of the equipment

(a) any such installation by the person of customer equipment; or

(b) any such maintenance by the person of customer equipment

13

the person:

(a) connects customer equipment to a telecommunications network in Australia; and

(b) does so otherwise than in the capacity of end-user of the equipment

any such connection by the person of customer equipment to a telecommunications network in Australia

14

the person is a constitutional corporation who:

(a) manufactures; or

(b) supplies; or

(c) installs; or

(d) maintains;

data processing devices

(a) the manufacture by the person of data processing devices for use, or likely to be used, in Australia; or

(b) the supply by the person of data processing devices for use, or likely to be used, in Australia; or

(c) the installation by the person of data processing devices in Australia; or

(d) the maintenance by the person of data processing devices in Australia

15

the person is a constitutional corporation who:

(a) develops; or

(b) supplies; or

(c) updates;

software that is capable of being installed on a computer, or other equipment, that is, or is likely to be, connected to a telecommunications network in Australia

(a) the development by the person of any such software; or

(b) the supply by the person of any such software; or

(c) the updating by the person of any such software

Note 1:       See also sections 317HAA, 317MAA and 317TAA (provision of advice to designated communications providers).

Note 2:       See also section 317ZT (alternative constitutional basis).

317D   Electronic service

             (1)  For the purposes of this Part, electronic service means:

                     (a)  a service that allows end-users to access material using a carriage service; or

                     (b)  a service that delivers material to persons having equipment appropriate for receiving that material, where the delivery of the service is by means of a carriage service;

but does not include:

                     (c)  a broadcasting service; or

                     (d)  a datacasting service (within the meaning of the Broadcasting Services Act 1992 ).

             (2)  For the purposes of subsection (1), service includes a website.

             (3)  For the purposes of this Part, a person does not provide an electronic service merely because the person supplies a carriage service that enables material to be accessed or delivered.

             (4)  For the purposes of this Part, a person does not provide an electronic service merely because the person provides a billing service, or a fee collection service, in relation to an electronic service.

             (5)  A reference in this section to the use of a thing is a reference to the use of the thing either:

                     (a)  in isolation; or

                     (b)  in conjunction with one or more other things.

317E  Listed acts or things

             (1)  For the purposes of the application of this Part to a designated communications provider, listed act or thing means:

                     (a)  removing one or more forms of electronic protection that are or were applied by, or on behalf of, the provider; or

                     (b)  providing technical information; or

                     (c)  installing, maintaining, testing or using software or equipment; or

                     (d)  ensuring that information obtained in connection with the execution of a warrant or authorisation is given in a particular format; or

                     (e)  facilitating or assisting access to whichever of the following are the subject of eligible activities of the provider:

                              (i)  a facility;

                             (ii)  customer equipment;

                            (iii)  a data processing device;

                            (iv)  a listed carriage service;

                             (v)  a service that facilitates, or is ancillary or incidental to, the supply of a listed carriage service;

                            (vi)  an electronic service;

                           (vii)  a service that facilitates, or is ancillary or incidental to, the provision of an electronic service;

                          (viii)  software used, for use, or likely to be used, in connection with a listed carriage service;

                            (ix)  software used, for use, or likely to be used, in connection with an electronic service;

                             (x)  software that is capable of being installed on a computer, or other equipment, that is, or is likely to be, connected to a telecommunications network; or

                      (f)  assisting with the testing, modification, development or maintenance of a technology or capability; or

                     (g)  notifying particular kinds of changes to, or developments affecting, eligible activities of the designated communications provider, if the changes are relevant to the execution of a warrant or authorisation; or

                     (h)  modifying, or facilitating the modification of, any of the characteristics of a service provided by the designated communications provider; or

                      (i)  substituting, or facilitating the substitution of, a service provided by the designated communications provider for:

                              (i)  another service provided by the provider; or

                             (ii)  a service provided by another designated communications provider; or

                      (j)  an act or thing done to conceal the fact that any thing has been done covertly in the performance of a function, or the exercise of a power, conferred by a law of the Commonwealth, a State or a Territory, so far as the function or power relates to:

                              (i)  enforcing the criminal law and laws imposing pecuniary penalties; or

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

                            (iii)  the interests of Australia’s national security, the interests of Australia’s foreign relations or the interests of Australia’s national economic well-being.

             (2)  Paragraph (1)(j) does not apply to:

                     (a)  making a false or misleading statement; or

                     (b)  engaging in dishonest conduct.

317F   Extension to external Territories

                   This Part extends to every external Territory.

Division 2 Voluntary technical assistance

317G   Voluntary technical assistance provided to ASIO, the Australian Secret Intelligence Service, the Australian Signals Directorate or an interception agency

             (1)  If:

                     (a)  any of the following persons:

                              (i)  the Director-General of Security;

                             (ii)  the Director-General of the Australian Secret Intelligence Service;

                            (iii)  the Director-General of the Australian Signals Directorate;

                            (iv)  the chief officer of an interception agency;

                            requests a designated communications provider to do one or more specified acts or things that:

                             (v)  are in connection with any or all of the eligible activities of the provider; and

                            (vi)  are covered by subsection (2); and

                     (b)  the provider does an act or thing:

                              (i)  in accordance with the request; or

                             (ii)  in good faith purportedly in accordance with the request;

then:

                     (c)  the provider is not subject to any civil liability for, or in relation to, the act or thing mentioned in paragraph (b); and

                     (d)  an officer, employee or agent of the provider is not subject to any civil liability for, or in relation to, an act or thing done by the officer, employee or agent in connection with the act or thing mentioned in paragraph (b).

             (2)  The specified acts or things must:

                     (a)  be directed towards ensuring that the designated communications provider is capable of giving help to:

                              (i)  in a case where the request is made by the Director-General of Security—ASIO; or

                             (ii)  in a case where the request is made by the Director-General of the Australian Secret Intelligence Service—the Australian Secret Intelligence Service; or

                            (iii)  in a case where the request is made by the Director-General of the Australian Signals Directorate—the Australian Signals Directorate; or

                            (iv)  in a case where the request is made by the chief officer of an interception agency—the agency;

                            in relation to:

                             (v)  the performance of a function, or the exercise of a power, conferred by or under a law of the Commonwealth, a State or a Territory, so far as the function or power relates to a relevant objective; or

                            (vi)  a matter that facilitates, or is ancillary or incidental to, a matter covered by subparagraph (v); or

                     (b)  be by way of giving help to:

                              (i)  in a case where the request is made by the Director-General of Security—ASIO; or

                             (ii)  in a case where the request is made by the Director-General of the Australian Secret Intelligence Service—the Australian Secret Intelligence Service; or

                            (iii)  in a case where the request is made by the Director-General of the Australian Signals Directorate—the Australian Signals Directorate; or

                            (iv)  in a case where the request is made by the chief officer of an interception agency—the agency;

                            in relation to:

                             (v)  the performance of a function, or the exercise of a power, conferred by or under a law of the Commonwealth, a State or a Territory, so far as the function or power relates to a relevant objective; or

                            (vi)  a matter that facilitates, or is ancillary or incidental to, a matter covered by subparagraph (v).

             (3)  A request under paragraph (1)(a) is to be known as a technical assistance request .

             (4)  Subparagraph (1)(b)(ii) does not apply to an act or thing done by a designated communications provider unless the act or thing is in connection with any or all of the eligible activities of the provider.

Relevant objective

             (5)  For the purposes of this section, relevant objective means:

                     (a)  enforcing the criminal law and laws imposing pecuniary penalties; or

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

                     (c)  the interests of Australia’s national security, the interests of Australia’s foreign relations or the interests of Australia’s national economic well-being.

Listed acts or things

             (6)  The acts or things that may be specified in a technical assistance request given to a designated communications provider include (but are not limited to) listed acts or things, so long as those acts or things:

                     (a)  are in connection with any or all of the eligible activities of the provider; and

                     (b)  are covered by subsection (2).

Note:          For listed acts or things , see section 317E.

317H   Form of technical assistance request

             (1)  A technical assistance request may be given:

                     (a)  orally; or

                     (b)  in writing.

             (2)  A technical assistance request must not be given orally unless:

                     (a)  an imminent risk of serious harm to a person or substantial damage to property exists; and

                     (b)  the technical assistance request is necessary for the purpose of dealing with that risk; and

                     (c)  it is not practicable in the circumstances to give the technical assistance request in writing.

             (3)  If a technical assistance request is given orally by:

                     (a)  the Director-General of Security; or

                     (b)  the Director-General of the Australian Secret Intelligence Service; or

                     (c)  the Director-General of the Australian Signals Directorate; or

                     (d)  the chief officer of an interception agency;

the Director-General of Security, the Director-General of the Australian Secret Intelligence Service, the Director-General of the Australian Signals Directorate or the chief officer, as the case requires, must:

                     (e)  make a written record of the request; and

                      (f)  do so within 48 hours after the request was given.

             (4)  If, under subsection (3):

                     (a)  the Director-General of Security; or

                     (b)  the Director-General of the Australian Secret Intelligence Service; or

                     (c)  the Director-General of the Australian Signals Directorate; or

                     (d)  the chief officer of an interception agency;

makes a written record of a technical assistance request, the Director-General of Security, the Director-General of the Australian Secret Intelligence Service, the Director-General of the Australian Signals Directorate or the chief officer, as the case requires, must:

                     (e)  give a copy of the record to the designated communications provider concerned; and

                      (f)  do so as soon as practicable after the record was made.

317HAA   Provision of advice to designated communications providers

             (1)  If the Director-General of Security gives a technical assistance request to a designated communications provider, the Director-General of Security must advise the provider that compliance with the request is voluntary.

             (2)  If the Director-General of the Australian Secret Intelligence Service gives a technical assistance request to a designated communications provider, the Director-General of the Australian Secret Intelligence Service must advise the provider that compliance with the request is voluntary.

             (3)  If the Director-General of the Australian Signals Directorate gives a technical assistance request to a designated communications provider, the Director-General of the Australian Signals Directorate must advise the provider that compliance with the request is voluntary.

             (4)  If the chief officer of an interception agency gives a technical assistance request to a designated communications provider, the chief officer must advise the provider that compliance with the request is voluntary.

317HA   Duration of technical assistance request

             (1)  A technical assistance request:

                     (a)  comes in force:

                              (i)  when it is given; or

                             (ii)  if a later time is specified in the request—at that later time; and

                     (b)  unless sooner revoked, remains in force:

                              (i)  if an expiry date is specified in the request—until the start of the expiry date; or

                             (ii)  otherwise—at end of the 90-day period beginning when the request was given.

             (2)  If a technical assistance request expires, this Part does not prevent the giving of a fresh technical assistance request in the same terms as the expired technical assistance request.

317J   Specified period etc.

             (1)  A technical assistance request may include a request that a specified act or thing be done within a specified period.

             (2)  A technical assistance request may include a request that a specified act or thing be done:

                     (a)  in a specified manner; or

                     (b)  in a way that meets one or more specified conditions.

             (3)  Subsections (1) and (2) of this section do not limit subsections 317G(1) and (2).

317JA   Variation of technical assistance requests

             (1)  If a technical assistance request has been given to a designated communications provider by the Director-General of Security, the Director-General of Security may vary the request.

             (2)  If a technical assistance request has been given to a designated communications provider by the Director-General of the Australian Secret Intelligence Service, the Director-General of the Australian Secret Intelligence Service may vary the request.

             (3)  If a technical assistance request has been given to a designated communications provider by the Director-General of the Australian Signals Directorate, the Director-General of the Australian Signals Directorate may vary the request.

             (4)  If a technical assistance request has been given to a designated communications provider by the chief officer of an interception agency, the chief officer may vary the request.

Form of variation

             (5)  A variation may be made:

                     (a)  orally; or

                     (b)  in writing.

             (6)  A variation must not be made orally unless:

                     (a)  an imminent risk of serious harm to a person or substantial damage to property exists; and

                     (b)  the variation is necessary for the purpose of dealing with that risk; and

                     (c)  it is not practicable in the circumstances to make the variation in writing.

             (7)  If a variation is made orally by:

                     (a)  the Director-General of Security; or

                     (b)  the Director-General of the Australian Secret Intelligence Service; or

                     (c)  the Director-General of the Australian Signals Directorate; or

                     (d)  the chief officer of an interception agency;

the Director-General of Security, the Director-General of the Australian Secret Intelligence Service, the Director-General of the Australian Signals Directorate or the chief officer, as the case requires, must:

                     (e)  make a written record of the variation; and

                      (f)  do so within 48 hours after the variation was made.

             (8)  If, under subsection (7):

                     (a)  the Director-General of Security; or

                     (b)  the Director-General of the Australian Secret Intelligence Service; or

                     (c)  the Director-General of the Australian Signals Directorate; or

                     (d)  the chief officer of an interception agency;

makes a written record of a variation, the Director-General of Security, the Director-General of the Australian Secret Intelligence Service, the Director-General of the Australian Signals Directorate or the chief officer, as the case requires, must:

                     (e)  give a copy of the record to the designated communications provider concerned; and

                      (f)  do so as soon as practicable after the record was made.

Acts or things specified in a varied technical assistance request

             (9)  The acts or things specified in a varied technical assistance request must be:

                     (a)  in connection with any or all of the eligible activities of the designated communications provider concerned; and

                     (b)  covered by subsection 317G(2).

           (10)  The acts or things that may be specified in a varied technical assistance request include (but are not limited to) listed acts or things, so long as those acts or things:

                     (a)  are in connection with any or all of the eligible activities of the designated communications provider concerned; and

                     (b)  are covered by subsection 317G(2).

Note:          For listed acts or things , see section 317E.

317JB   Revocation of technical assistance requests

             (1)  If a technical assistance request has been given to a person by the Director-General of Security, the Director-General of Security may, by written notice given to the person, revoke the request.

             (2)  If a technical assistance request has been given to a person by the Director-General of the Australian Secret Intelligence Service, the Director-General of the Australian Secret Intelligence Service may, by written notice given to the person, revoke the request.

             (3)  If a technical assistance request has been given to a person by the Director-General of the Australian Signals Directorate, the Director-General of the Australian Signals Directorate may, by written notice given to the person, revoke the request.

             (4)  If a technical assistance request has been given to a person by the chief officer of an interception agency, the chief officer may, by written notice given to the person, revoke the request.

317K   Contract etc.

                   Any of the following persons:

                     (a)  the Director-General of Security;

                     (b)  the Director-General of the Australian Secret Intelligence Service;

                     (c)  the Director-General of the Australian Signals Directorate;

                     (d)  the chief officer of an interception agency;

may enter into a contract, agreement or arrangement with a designated communications provider in relation to acts or things done by the provider in accordance with a technical assistance request.

Division 3 Technical assistance notices

317L   Technical assistance notices

             (1)  The Director-General of Security or the chief officer of an interception agency may give a designated communications provider a notice, to be known as a technical assistance notice, that requires the provider to do one or more specified acts or things that:

                     (a)  are in connection with any or all of the eligible activities of the provider; and

                     (b)  are covered by subsection (2).

Note:          Section 317ZK deals with the terms and conditions on which such a requirement is to be complied with.

             (2)  The specified acts or things must be by way of giving help to:

                     (a)  in a case where the technical assistance notice is given by the Director-General of Security—ASIO; or

                     (b)  in a case where the technical assistance notice is given by the chief officer of an interception agency—the agency;

in relation to:

                     (c)  the performance of a function, or the exercise of a power, conferred by or under a law of the Commonwealth, a State or a Territory, so far as the function or power relates to:

                              (i)  enforcing the criminal law and laws imposing pecuniary penalties; or

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

                            (iii)  safeguarding national security; or

                     (d)  a matter that facilitates, or is ancillary or incidental to, a matter covered by paragraph (c).

Listed acts or things

             (3)  The acts or things that may be specified in a technical assistance notice given to a designated communications provider include (but are not limited to) listed acts or things, so long as those acts or things:

                     (a)  are in connection with any or all of the eligible activities of the provider; and

                     (b)  are covered by subsection (2).

Note:          For listed acts or things , see section 317E.

317M   Form of technical assistance notice

             (1)  A technical assistance notice may be given:

                     (a)  orally; or

                     (b)  in writing.

             (2)  A technical assistance notice must not be given orally unless:

                     (a)  an imminent risk of serious harm to a person or substantial damage to property exists; and

                     (b)  the technical assistance notice is necessary for the purpose of dealing with that risk; and

                     (c)  it is not practicable in the circumstances to give the technical assistance notice in writing.

             (3)  If a technical assistance notice is given orally by the Director-General of Security or the chief officer of an interception agency, the Director-General of Security or the chief officer, as the case requires, must:

                     (a)  make a written record of the notice; and

                     (b)  do so within 48 hours after the notice was given.

             (4)  If, under subsection (3), the Director-General of Security or the chief officer of an interception agency makes a written record of a technical assistance notice, the Director-General of Security or the chief officer, as the case requires, must:

                     (a)  give a copy of the record to the designated communications provider concerned; and

                     (b)  do so as soon as practicable after the record was made.

317MAA   Provision of advice to designated communications providers

             (1)  If the Director-General of Security gives a technical assistance notice to a designated communications provider, the Director-General of Security must give the provider advice relating to the provider’s obligations under whichever of sections 317ZA and 317ZB is applicable, so far as those obligations relate to the notice.

             (2)  If the chief officer of an interception agency gives a technical assistance notice to a designated communications provider, the chief officer must give the provider advice relating to the provider’s obligations under whichever of sections 317ZA and 317ZB is applicable, so far as those obligations relate to the notice.

317MA   Duration of technical assistance notice

             (1)  A technical assistance notice:

                     (a)  comes in force:

                              (i)  when it is given; or

                             (ii)  if a later time is specified in the notice—at that later time; and

                     (b)  unless sooner revoked, remains in force:

                              (i)  if an expiry date is specified in the notice—until the start of the expiry date; or

                             (ii)  otherwise—at end of the 90-day period beginning when the notice was given.

             (2)  If a technical assistance notice expires, this Part does not prevent the giving of a fresh technical assistance notice in the same terms as the expired technical assistance notice.

317N   Compliance period etc.

             (1)  A technical assistance notice may require a specified act or thing to be done within a specified period.

             (2)  A technical assistance notice may require a specified act or thing to be done:

                     (a)  in a specified manner; or

                     (b)  in a way that meets one or more specified conditions.

             (3)  Subsections (1) and (2) of this section do not limit subsections 317L(1) and (2).

317P   Decision-making criteria

                   The Director-General of Security or the chief officer of an interception agency must not give a technical assistance notice to a designated communications provider unless the Director-General of Security or the chief officer, as the case requires, is satisfied that:

                     (a)  the requirements imposed by the notice are reasonable and proportionate; and

                     (b)  compliance with the notice is:

                              (i)  practicable; and

                             (ii)  technically feasible.

Note:          See also section 317RA.

317Q   Variation of technical assistance notices

             (1)  If a technical assistance notice has been given to a designated communications provider by the Director-General of Security, the Director-General of Security may vary the notice.

             (2)  If a technical assistance notice has been given to a designated communications provider by the chief officer of an interception agency, the chief officer may vary the notice.

Form of variation

             (3)  A variation may be made:

                     (a)  orally; or

                     (b)  in writing.

             (4)  A variation must not be made orally unless:

                     (a)  an imminent risk of serious harm to a person or substantial damage to property exists; and

                     (b)  the variation is necessary for the purpose of dealing with that risk; and

                     (c)  it is not practicable in the circumstances to make the variation in writing.

             (5)  If a variation is made orally by the Director-General of Security or the chief officer of an interception agency, the Director-General of Security or the chief officer, as the case requires, must:

                     (a)  make a written record of the variation; and

                     (b)  do so within 48 hours after the variation was made.

             (6)  If, under subsection (5), the Director-General of Security or the chief officer of an interception agency makes a written record of a variation, the Director-General of Security or the chief officer, as the case requires, must:

                     (a)  give a copy of the record to the designated communications provider concerned; and

                     (b)  do so as soon as practicable after the record was made.

             (7)  If a variation is made in writing by the Director-General of Security or the chief officer of an interception agency, the Director-General of Security or the chief officer, as the case requires, must:

                     (a)  give a copy of the variation to the designated communications provider concerned; and

                     (b)  do so as soon as practicable after the variation was made.

Acts or things specified in a varied technical assistance notice

             (8)  The acts or things specified in a varied technical assistance notice must be:

                     (a)  in connection with any or all of the eligible activities of the designated communications provider concerned; and

                     (b)  covered by subsection 317L(2).

             (9)  The acts or things that may be specified in a varied technical assistance notice include (but are not limited to) listed acts or things, so long as those acts or things:

                     (a)  are in connection with any or all of the eligible activities of the designated communications provider concerned; and

                     (b)  are covered by subsection 317L(2).

Note:          For listed acts or things , see section 317E.

Decision-making criteria

           (10)  The Director-General of Security or the chief officer of an interception agency must not vary a technical assistance notice unless the Director-General of Security or the chief officer, as the case requires, is satisfied that:

                     (a)  the requirements imposed by the varied notice are reasonable and proportionate; and

                     (b)  compliance with the varied notice is:

                              (i)  practicable; and

                             (ii)  technically feasible.

Note:          See also section 317RA.

317R   Revocation of technical assistance notices

             (1)  If a technical assistance notice has been given to a person by the Director-General of Security, the Director-General of Security may, by written notice given to the person, revoke the notice.

             (2)  If a technical assistance notice has been given to a person by the Director-General of Security, and the Director-General of Security is satisfied that:

                     (a)  the requirements imposed by the notice are not reasonable and proportionate; or

                     (b)  compliance with the notice is not:

                              (i)  practicable; and

                             (ii)  technically feasible;

the Director-General of Security must, by written notice given to the person, revoke the notice.

             (3)  If a technical assistance notice has been given to a person by the chief officer of an interception agency, the chief officer may, by written notice given to the person, revoke the notice.

             (4)  If a technical assistance notice has been given to a person by the chief officer of an interception agency, and the chief officer is satisfied that:

                     (a)  the requirements imposed by the notice are not reasonable and proportionate; or

                     (b)  compliance with the notice is not:

                              (i)  practicable; and

                             (ii)  technically feasible;

the chief officer must, by written notice given to the person, revoke the notice.

317RA   Whether requirements imposed by a technical assistance notice are reasonable and proportionate

                   In considering whether the requirements imposed by a technical assistance notice or a varied technical assistance notice are reasonable and proportionate, the Director-General of Security or the chief officer of an interception agency, as the case requires, must have regard to the following matters:

                     (a)  the interests of national security;

                     (b)  the interests of law enforcement;

                     (c)  the legitimate interests of the designated communications provider to whom the notice relates;

                     (d)  the objectives of the notice;

                     (e)  the availability of other means to achieve the objectives of the notice;

                      (f)  the legitimate expectations of the Australian community relating to privacy and cybersecurity;

                     (g)  such other matters (if any) as the Director-General of Security or the chief officer, as the case requires, considers relevant.

Division 4 Technical capability notices

317S   Attorney-General may determine procedures and arrangements relating to requests for technical capability notices

             (1)  The Attorney-General may, by writing, determine procedures and arrangements to be followed in relation to the making of requests for technical capability notices.

             (2)  A procedure or arrangement determined under subsection (1) may require that the agreement of a person or body must be obtained before a request is made for a technical capability notice.

             (3)  A failure to comply with a determination under subsection (1) does not affect the validity of a technical capability notice.

             (4)  A determination under subsection (1) is not a legislative instrument.

317T   Technical capability notices

             (1)  The Attorney-General may, in accordance with a request made by the Director-General of Security or the chief officer of an interception agency, give a designated communications provider a written notice, to be known as a technical capability notice, that requires the provider to do one or more specified acts or things that:

                     (a)  are in connection with any or all of the eligible activities of the provider; and

                     (b)  are covered by subsection (2).

Note:          Section 317ZK deals with the terms and conditions on which such a requirement is to be complied with.

             (2)  The specified acts or things must:

                     (a)  be directed towards ensuring that the designated communications provider is capable of giving listed help to ASIO, or an interception agency, in relation to:

                              (i)  the performance of a function, or the exercise of a power, conferred by or under a law of the Commonwealth, a State or a Territory, so far as the function or power relates to a relevant objective; or

                             (ii)  a matter that facilitates, or is ancillary or incidental to, a matter covered by subparagraph (i); or

                     (b)  be by way of giving help to ASIO, or an interception agency, in relation to:

                              (i)  the performance of a function, or the exercise of a power, conferred by or under a law of the Commonwealth, a State or a Territory, so far as the function or power relates to a relevant objective; or

                             (ii)  a matter that facilitates, or is ancillary or incidental to, a matter covered by subparagraph (i).

Relevant objective

             (3)  For the purposes of this section, relevant objective means:

                     (a)  enforcing the criminal law and laws imposing pecuniary penalties; or

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

                     (c)  safeguarding national security.

Listed help

             (4)  For the purposes of the application of this section to a designated communications provider, if one or more acts or things done by the provider:

                     (a)  are by way of giving help to ASIO or an interception agency; and

                     (b)  are in connection with any or all of the eligible activities of the provider; and

                     (c)  consist of either or both of the following:

                              (i)  one or more listed acts or things (other than an act or thing covered by paragraph 317E(1)(a));

                             (ii)  one or more acts or things of a kind determined under subsection (5);

that help is listed help .

Note:          For listed acts or things , see section 317E.

             (5)  The Minister may, by legislative instrument, determine one or more kinds of acts or things for the purposes of subparagraph (4)(c)(ii).

             (6)  In making a determination under subsection (5), the Minister must have regard to the following matters:

                     (a)  the interests of law enforcement;

                     (b)  the interests of national security;

                     (c)  the objects of this Act;

                     (d)  the likely impact of the determination on designated communications providers;

                     (e)  such other matters (if any) as the Minister considers relevant.

Listed acts or things

             (7)  The acts or things that may be specified in a technical capability notice given to a designated communications provider in accordance with paragraph (2)(b) include (but are not limited to) listed acts or things, so long as those acts or things:

                     (a)  are in connection with any or all of the eligible activities of the provider; and

                     (b)  are covered by subsection (2), so far as that subsection relates to paragraph (2)(b).

Limits

             (8)  If:

                     (a)  a designated communications provider supplies a particular kind of telecommunications service; and

                     (b)  the service involves, or will involve, the use of a telecommunications system;

a technical capability notice has no effect to the extent (if any) to which it requires the provider to ensure that the kind of service, or the system:

                     (c)  has the capability to enable a communication passing over the system to be intercepted in accordance with an interception warrant; or

                     (d)  has the capability to transmit lawfully intercepted information to the delivery points applicable in respect of that kind of service; or

                     (e)  has a delivery capability.

Note 1:       Part 5-3 of the Telecommunications (Interception and Access) Act 1979 deals with interception capability.

Note 2:       Part 5-5 of the Telecommunications (Interception and Access) Act 1979 deals with delivery capability.

             (9)  For the purposes of subsection (8), ensuring that a kind of service or a system has a particular capability includes ensuring that the capability is developed, installed and maintained.

           (10)  A technical capability notice has no effect to the extent (if any) to which it requires a designated communications provider to keep, or cause to be kept:

                     (a)  information of a kind specified in or under section 187AA of the Telecommunications (Interception and Access) Act 1979 ; or

                     (b)  documents containing information of that kind;

relating to any communication carried by means of a service to which Part 5-1A of the Telecommunications (Interception and Access) Act 1979 applies.

Note:          Part 5-1A of the Telecommunications (Interception and Access) Act 1979 deals with data retention.

           (11)  An expression used in subsection (8), (9) or (10) of this section and in Chapter 5 of the Telecommunications (Interception and Access) Act 1979 has the same meaning in those subsections as it has in that Chapter.

Applicable costs negotiator

           (12)  A technical capability notice must specify a person as the applicable costs negotiator for the notice.

Note:          See section 317ZK.

           (13)  A person may be specified under subsection (12):

                     (a)  by name; or

                     (b)  as any person from time to time holding, occupying, or performing the duties of, a specified office or position.

317TAA   Provision of advice to designated communications providers

                   If the Attorney-General gives a technical capability notice to a designated communications provider, the Attorney-General must give the provider advice relating to the provider’s obligations under whichever of sections 317ZA and 317ZB is applicable, so far as those obligations relate to the notice.

317TA   Duration of technical capability notice

             (1)  A technical capability notice:

                     (a)  comes in force:

                              (i)  when it is given; or

                             (ii)  if a later time is specified in the notice—at that later time; and

                     (b)  unless sooner revoked, remains in force:

                              (i)  if an expiry date is specified in the notice—until the start of the expiry date; or

                             (ii)  otherwise—at end of the 180-day period beginning when the notice was given.

             (2)  If a technical capability notice expires, this Part does not prevent the giving of a fresh technical capability notice in the same terms as the expired technical capability notice.

317U   Compliance period etc.

             (1)  A technical capability notice may require a specified act or thing to be done within a specified period.

             (2)  A technical capability notice may require a specified act or thing to be done:

                     (a)  in a specified manner; or

                     (b)  in a way that meets one or more specified conditions.

             (3)  Subsections (1) and (2) of this section do not limit subsections 317T(1) and (2).

317V   Decision-making criteria

                   The Attorney-General must not give a technical capability notice to a designated communications provider unless:

                     (a)  the Attorney-General is satisfied that the requirements imposed by the notice are reasonable and proportionate; and

                     (b)  the Attorney-General is satisfied that compliance with the notice is:

                              (i)  practicable; and

                             (ii)  technically feasible.

Note:          See also section 317ZAA.

317W   Consultation about a proposal to give a technical capability notice

             (1)  The Attorney-General must not give a technical capability notice to a designated communications provider unless the Attorney-General has first:

                     (a)  given the provider a written notice (the consultation notice ):

                              (i)  setting out a proposal to give the technical capability notice; and

                             (ii)  inviting the provider to make a submission to the Attorney-General on the proposed technical capability notice; and

                     (b)  considered any submission that was received within the time limit specified in the consultation notice; and

                     (c)  considered any copy of a report given to the Attorney-General under subsection (7) within the time limit specified in the consultation notice.

             (2)  A time limit specified in a consultation notice must run for at least 28 days.

             (3)  The rule in subsection (2) does not apply to a technical capability notice given to a designated communications provider if:

                     (a)  the Attorney-General is satisfied that the technical capability notice should be given as a matter of urgency; or

                     (b)  compliance with subsection (2) is impracticable; or

                     (c)  the provider waives compliance with subsection (2).

             (4)  For the purposes of paragraph (3)(c), a designated communications provider may waive compliance:

                     (a)  orally; or

                     (b)  in writing.

             (5)  If compliance is waived orally by a designated communications provider, the provider must:

                     (a)  make a written record of the waiver; and

                     (b)  do so within 48 hours after the waiver was made.

             (6)  If, under subsection (5), a designated communications provider makes a written record of the waiver, the provider must:

                     (a)  give a copy of the record to the Attorney-General; and

                     (b)  do so as soon as practicable after the record was made.

Assessment and report—section 317ZG

             (7)  If the Attorney-General gives a consultation notice to a designated communications provider, the Attorney-General and the provider may jointly appoint one or more persons to:

                     (a)  carry out an assessment of whether the proposed technical capability notice would contravene section 317ZG; and

                     (b)  prepare a report of the assessment; and

                     (c)  give copies of the report to:

                              (i)  the Attorney-General; and

                             (ii)  the provider;

                            within the time limit specified in the consultation notice.

             (8)  A person must not be appointed under subsection (7) unless the person has knowledge that would enable the person to assess whether the proposed technical capability notice would contravene section 317ZG.

             (9)  An appointment of one or more persons under subsection (7) is taken to be made on the basis that the designated communications provider has agreed to be responsible for paying the remuneration of those persons.

           (10)  The Attorney-General may, on behalf of the Commonwealth, reimburse the whole or part of the amount of any remuneration paid by a designated communications provider to a person or persons appointed under subsection (7).

           (11)  For the purposes of this Part:

                     (a)  information about the carrying out of an assessment under subsection (7); or

                     (b)  information contained in a report prepared under subsection (7);

is taken to be information about consultation relating to the giving of a technical capability notice.

317X   Variation of technical capability notices

             (1)  If a technical capability notice has been given to a designated communications provider, the Attorney-General may, by written notice given to the provider, vary the notice.

Acts or things specified in a varied technical capability notice

             (2)  The acts or things specified in a varied technical capability notice must be:

                     (a)  in connection with any or all of the eligible activities of the designated communications provider concerned; and

                     (b)  covered by subsection 317T(2).

             (3)  The acts or things that may be specified in a varied technical capability notice in accordance with paragraph 317T(2)(b) include (but are not limited to) listed acts or things, so long as those acts or things:

                     (a)  are in connection with any or all of the eligible activities of the designated communications provider concerned; and

                     (b)  are covered by subsection 317T(2), so far as that subsection relates to paragraph 317T(2)(b).

Note:          For listed acts or things , see section 317E.

Decision-making criteria

             (4)  The Attorney-General must not vary a technical capability notice unless the Attorney-General is satisfied that:

                     (a)  the requirements imposed by the varied notice are reasonable and proportionate; and

                     (b)  compliance with the varied notice is:

                              (i)  practicable; and

                             (ii)  technically feasible.

Note:          See also section 317ZAA.

317Y   Consultation about a proposal to vary a technical capability notice

             (1)  If a technical capability notice has been given to a designated communications provider, the Attorney-General must not vary the notice unless the Attorney-General has first:

                     (a)  given the provider a written notice (the consultation notice) :

                              (i)  setting out a proposal to vary the technical capability notice; and

                             (ii)  inviting the provider to make a submission to the Attorney-General on the proposed variation; and

                     (b)  considered any submission that was received within the time limit specified in the consultation notice.

             (2)  A time limit specified in a consultation notice must run for at least 28 days.

             (3)  If a technical capability notice has been given to a designated communications provider, the rule in subsection (2) does not apply to a variation of the notice if:

                     (a)  the Attorney-General is satisfied that the technical capability notice should be varied as a matter of urgency; or

                     (b)  compliance with subsection (2) is impracticable; or

                     (c)  the provider waives compliance with subsection (2).

             (4)  For the purposes of paragraph (3)(c), a designated communications provider may waive compliance:

                     (a)  orally; or

                     (b)  in writing.

             (5)  If compliance is waived orally by a designated communications provider, the provider must:

                     (a)  make a written record of the waiver; and

                     (b)  do so within 48 hours after the waiver was made.

             (6)  If, under subsection (5), a designated communications provider makes a written record of the waiver, the provider must:

                     (a)  give a copy of the record to the Attorney-General; and

                     (b)  do so as soon as practicable after the record was made.

317Z   Revocation of technical capability notices

             (1)  If a technical capability notice has been given to a person, the Attorney-General may, by written notice given to the person, revoke the notice.

             (2)  If a technical capability notice has been given to a person, and the Attorney-General is satisfied that:

                     (a)  the requirements imposed by the notice are not reasonable and proportionate; or

                     (b)  compliance with the notice is not:

                              (i)  practicable; and

                             (ii)  technically feasible;

the Attorney-General must, by written notice given to the person, revoke the notice.

317ZAA   Whether requirements imposed by a technical capability notice are reasonable and proportionate

                   In considering whether the requirements imposed by a technical capability notice or a varied technical capability notice are reasonable and proportionate, the Attorney-General must have regard to the following matters:

                     (a)  the interests of national security;

                     (b)  the interests of law enforcement;

                     (c)  the legitimate interests of the designated communications provider to whom the notice relates;

                     (d)  the objectives of the notice;

                     (e)  the availability of other means to achieve the objectives of the notice;

                      (f)  the legitimate expectations of the Australian community relating to privacy and cybersecurity;

                     (g)  such other matters (if any) as the Attorney-General considers relevant.

Division 5 Compliance and enforcement

317ZA   Compliance with notices—carriers and carriage service providers

             (1)  A carrier or carriage service provider must comply with a requirement under:

                     (a)  a technical assistance notice; or

                     (b)  a technical capability notice;

to the extent that the carrier or provider is capable of doing so.

             (2)  A person must not:

                     (a)  aid, abet, counsel or procure a contravention of subsection (1); or

                     (b)  induce, whether by threats or promises or otherwise, a contravention of subsection (1); or

                     (c)  be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (1); or

                     (d)  conspire with others to effect a contravention of subsection (1).

             (3)  Subsections (1) and (2) are civil penalty provisions.

Note:          Part 31 provides for pecuniary penalties for breaches of civil penalty provisions.

317ZB   Compliance with notices—designated communications provider (other than a carrier or carriage service provider)

             (1)  A designated communications provider (other than a carrier or carriage service provider) must comply with a requirement under:

                     (a)  a technical assistance notice; or

                     (b)  a technical capability notice;

to the extent that the provider is capable of doing so.

Civil penalty:

                     (a)  if the provider is a body corporate—47,619 penalty units; or

                     (b)  if the provider is not a body corporate—238 penalty units.

             (2)  The pecuniary penalty for a contravention by a designated communications provider of subsection (1) must not be more than:

                     (a)  if the provider is a body corporate—47,619 penalty units; or

                     (b)  if the provider is not a body corporate—238 penalty units.

             (3)  Subsection 82(5) of the Regulatory Powers (Standard Provisions) Act 2014 does not apply to a contravention of subsection (1) of this section.

             (4)  Sections 564 and 572B do not apply to a contravention of subsection (1) of this section.

             (5)  In proceedings for a civil penalty order against a designated communications provider for a contravention of subsection (1) in relation to:

                     (a)  a requirement under a technical assistance notice to do an act or thing in a foreign country; or

                     (b)  a requirement under a technical capability notice to do an act or thing in a foreign country;

it is a defence if the provider proves that compliance with the requirement in the foreign country would contravene a law of the foreign country.

317ZC   Civil penalty provision

Enforceable civil penalty provision

             (1)  Section 317ZB of this Act is enforceable under Part 4 of the Regulatory Powers (Standard Provisions) Act 2014 .

Note:          Part 4 of the Regulatory Powers (Standard Provisions) Act 2014 allows a civil penalty provision to be enforced by obtaining an order for a person to pay a pecuniary penalty for the contravention of the provision.

Authorised applicant

             (2)  For the purposes of Part 4 of the Regulatory Powers (Standard Provisions) Act 2014 , the Communications Access Co-ordinator is an authorised applicant in relation to section 317ZB of this Act.

Relevant courts

             (3)  For the purposes of Part 4 of the Regulatory Powers (Standard Provisions) Act 2014 , the Federal Court and the Federal Circuit Court of Australia are relevant courts in relation to section 317ZB of this Act.

Extension to external Territories etc.

             (4)  Part 4 of the Regulatory Powers (Standard Provisions) Act 2014 , as it applies in relation to section 317ZB of this Act, extends to:

                     (a)  every external Territory; and

                     (b)  acts, omissions, matters and things outside Australia.

317ZD   Enforceable undertakings

Enforceable provision

             (1)  Section 317ZB of this Act is enforceable under Part 6 of the Regulatory Powers (Standard Provisions) Act 2014 .

Authorised person

             (2)  The Communications Access Co-ordinator is an authorised person in relation to section 317ZB of this Act for the purposes of Part 6 of the Regulatory Powers (Standard Provisions) Act 2014 .

Relevant courts

             (3)  The Federal Court and the Federal Circuit Court of Australia are relevant courts in relation to section 317ZB of this Act for the purposes of Part 6 of the Regulatory Powers (Standard Provisions) Act 2014 .

Extension to external Territories etc.

             (4)  Part 6 of the Regulatory Powers (Standard Provisions) Act 2014 , as it applies in relation to section 317ZB of this Act, extends to:

                     (a)  every external Territory; and

                     (b)  acts, omissions, matters and things outside Australia.

317ZE   Injunctions

Enforceable provision

             (1)  Section 317ZB of this Act is enforceable under Part 7 of the Regulatory Powers (Standard Provisions) Act 2014 .

Authorised person

             (2)  The Communications Access Co-ordinator is an authorised person in relation to section 317ZB of this Act for the purposes of Part 7 of the Regulatory Powers (Standard Provisions) Act 2014 .

Relevant courts

             (3)  The Federal Court and the Federal Circuit Court of Australia are relevant courts in relation to section 317ZB of this Act for the purposes of Part 7 of the Regulatory Powers (Standard Provisions) Act 2014 .

Extension to external Territories etc.

             (4)  Part 7 of the Regulatory Powers (Standard Provisions) Act 2014 , as it applies in relation to section 317ZB of this Act, extends to:

                     (a)  every external Territory; and

                     (b)  acts, omissions, matters and things outside Australia.

Division 6 Unauthorised disclosure of information etc.

317ZF   Unauthorised disclosure of information

             (1)  A person commits an offence if:

                     (a)  the person discloses information; and

                     (b)  the person is or was:

                              (i)  a designated communications provider; or

                             (ii)  an employee of a designated communications provider; or

                            (iii)  a contracted service provider of a designated communications provider; or

                            (iv)  an employee of a contracted service provider of a designated communications provider; or

                             (v)  an entrusted ASIO person; or

                            (vi)  an entrusted ASIS person; or

                           (vii)  an entrusted ASD person; or

                          (viii)  an officer of an interception agency; or

                            (ix)  an officer or employee of the Commonwealth, a State or a Territory; or

                             (x)  a person appointed under subsection 317W(7); or

                            (xi)  an arbitrator appointed under section 317ZK; and

                     (c)  the information:

                              (i)  is technical assistance notice information; or

                             (ii)  is technical capability notice information; or

                            (iii)  is technical assistance request information; or

                            (iv)  was obtained in accordance with a technical assistance notice; or

                             (v)  was obtained in accordance with a technical capability notice; or

                            (vi)  was obtained in accordance with a technical assistance request; and

                     (d)  if the information is covered by subparagraph (c)(i), (ii) or (iii)—the information has come to the person’s knowledge, or into the person’s possession:

                              (i)  if the person is or was a designated communications provider—in connection with the person’s capacity as such a provider; or

                             (ii)  if the person is or was an employee of a designated communications provider—because the person is or was employed by the provider in connection with its business as such a provider; or

                            (iii)  if the person is or was a contracted service provider of a designated communications provider—in connection with the person’s business as such a contracted service provider; or

                            (iv)  if the person is or was an employee of a contracted service provider of a designated communications provider—because the person is or was employed by the contractor in connection with its business as such a contracted service provider; or

                             (v)  if the person is or was an entrusted ASIO person—in the person’s capacity as such an entrusted ASIO person; or

                            (vi)  if the person is or was an entrusted ASIS person—in the person’s capacity as such an entrusted ASIS person; or

                           (vii)  if the person is or was an entrusted ASD person—in the person’s capacity as such an entrusted ASD person; or

                          (viii)  if the person is or was an officer of an interception agency—in the person’s capacity as such an officer; or

                            (ix)  if the person is or was an officer or employee of the Commonwealth, a State or a Territory—in the person’s capacity as such an officer or employee; or

                             (x)  if the person is or was an arbitrator appointed under section 317ZK—in the person’s capacity as such an arbitrator; and

                     (e)  if the information is covered by subparagraph (c)(iv), (v) or (vi)—the information has come to the person’s knowledge, or into the person’s possession:

                              (i)  if the person is or was an entrusted ASIO person—in the person’s capacity as such an entrusted ASIO person; or

                             (ii)  if the person is or was an entrusted ASIS person—in the person’s capacity as such an entrusted ASIS person; or

                            (iii)  if the person is or was an entrusted ASD person—in the person’s capacity as such an entrusted ASD person; or

                            (iv)  if the person is or was an officer of an interception agency—in the person’s capacity as such an officer; or

                             (v)  if the person is or was an officer or employee of the Commonwealth, a State or a Territory—in the person’s capacity as such an officer or employee; or

                            (vi)  if the person is or was an arbitrator appointed under section 317ZK—in the person’s capacity as such an arbitrator.

Penalty:  Imprisonment for 5 years.

Exceptions

             (2)  Subsection (1) does not apply if the disclosure was authorised under subsection (3), (5), (6), (7), (8), (9), (10), (11) or (13).

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

Authorised disclosures—general

             (3)  A person covered by paragraph (1)(b) may disclose technical assistance notice information, technical capability notice information or technical assistance request information:

                     (a)  in connection with the administration or execution of this Part; or

                     (b)  for the purposes of any legal proceedings arising out of or otherwise related to this Part or of any report of any such proceedings; or

                     (c)  in accordance with any requirement imposed by a law of the Commonwealth, a State or a Territory; or

                     (d)  in connection with the performance of functions, or the exercise of powers, by:

                              (i)  ASIO; or

                             (ii)  the Australian Secret Intelligence Service; or

                            (iii)  the Australian Signals Directorate; or

                            (iv)  an interception agency; or

                     (e)  for the purpose of obtaining legal advice in relation to this Part; or

                      (f)  to an IGIS official for the purpose of exercising powers, or performing functions or duties, as an IGIS official.

             (4)  For the purposes of subsection (3), this Part includes:

                     (a)  any other provision of this Act, so far as that other provision relates to this Part; and

                     (b)  the Regulatory Powers (Standard Provisions) Act 2014 , so far as that Act relates to this Part.

Authorised disclosures—IGIS official

             (5)  An IGIS official may disclose:

                     (a)  technical assistance notice information; or

                     (b)  technical capability notice information; or

                     (c)  technical assistance request information;

in connection with the IGIS official exercising powers, or performing functions or duties, as an IGIS official.

Authorised disclosures—information sharing

             (6)  The Director-General of Security or the Communications Access Co-ordinator may disclose information that is:

                     (a)  technical assistance notice information; or

                     (b)  technical capability notice information; or

                     (c)  technical assistance request information;

to the chief officer of an interception agency for purposes relating to the performance of functions, or the exercise of powers, by the interception agency.

             (7)  The chief officer of an interception agency may disclose information that is:

                     (a)  technical assistance notice information; or

                     (b)  technical capability notice information; or

                     (c)  technical assistance request information;

to the chief officer of another interception agency for purposes relating to the performance of functions, or the exercise of powers, by the other interception agency.

             (8)  The Director-General of Security, the Director-General of the Australian Signals Directorate or the chief officer of an interception agency may disclose information that is:

                     (a)  technical assistance notice information; or

                     (b)  technical capability notice information; or

                     (c)  technical assistance request information;

to the Director-General of the Australian Secret Intelligence Service for purposes relating to the performance of functions, or the exercise of powers, by the Australian Secret Intelligence Service.

             (9)  The Director-General of Security, the Director-General of the Australian Secret Intelligence Service or the chief officer of an interception agency may disclose information that is:

                     (a)  technical assistance notice information; or

                     (b)  technical capability notice information; or

                     (c)  technical assistance request information;

to the Director-General of the Australian Signals Directorate for purposes relating to the performance of functions, or the exercise of powers, by the Australian Signals Directorate.

           (10)  The Communications Access Co-ordinator, the Director-General of the Australian Secret Intelligence Service, the Director-General of the Australian Signals Directorate or the chief officer of an interception agency may disclose information that is:

                     (a)  technical assistance notice information; or

                     (b)  technical capability notice information; or

                     (c)  technical assistance request information;

to the Director-General of Security for purposes relating to the performance of functions, or the exercise of powers, by ASIO.

           (11)  The Director-General of Security or the chief officer of an interception agency may disclose information that is:

                     (a)  technical assistance notice information; or

                     (b)  technical capability notice information; or

                     (c)  technical assistance request information;

to the Communications Access Co-ordinator for purposes relating to the performance of functions, or the exercise of powers, by the Communications Access Co-ordinator.

           (12)  Before disclosing information under subsection (6), (7), (8), (9) or (10), the Director-General of Security, the Director-General of the Australian Secret Intelligence Service, the Director-General of the Australian Signals Directorate or the chief officer of an interception agency, as the case requires, must notify the Communications Access Co-ordinator of the proposed disclosure.

Authorised disclosures—statistics

           (13)  A person who is:

                     (a)  a designated communications provider; or

                     (b)  an employee of a designated communications provider; or

                     (c)  a contracted service provider of a designated communications provider; or

                     (d)  an employee of a contracted service provider of a designated communications provider;

may, in the person’s capacity as such a provider or employee, disclose:

                     (e)  the total number of technical assistance notices given to the provider during a period of at least 6 months; or

                      (f)  the total number of technical capability notices given to the provider during a period of at least 6 months; or

                     (g)  the total number of technical assistance requests given to the provider during a period of at least 6 months.

Note:          This subsection authorises the disclosure of aggregate statistical information. That information cannot be broken down:

(a)    by agency; or

(b)    in any other way.

317ZFA   Powers of a court

             (1)  In a proceeding under, or arising out of:

                     (a)  this Part; or

                     (b)  any other provision of this Act, so far as that other provision relates to this Part; or

                     (c)  the Regulatory Powers (Standard Provisions) Act 2014 , so far as that Act relates to this Part;

a court may make such orders as the court considers appropriate in relation to the disclosure, protection, storage, handling or destruction, in the proceeding, of:

                     (d)  technical assistance notice information; or

                     (e)  technical capability notice information; or

                      (f)  technical assistance request information;

if the court is satisfied that it is in the public interest to make such orders.

             (2)  The powers conferred on a court by subsection (1) are in addition to any other powers of the court.

Division 7 Limitations

317ZG   Designated communications provider must not be required to implement or build a systemic weakness or systemic vulnerability etc.

             (1)  A technical assistance notice or technical capability notice must not have the effect of:

                     (a)  requiring a designated communications provider to implement or build a systemic weakness, or a systemic vulnerability, into a form of electronic protection; or

                     (b)  preventing a designated communications provider from rectifying a systemic weakness, or a systemic vulnerability, in a form of electronic protection.

             (2)  The reference in paragraph (1)(a) to implement or build a systemic weakness, or a systemic vulnerability, into a form of electronic protection includes a reference to implement or build a new decryption capability in relation to a form of electronic protection.

             (3)  The reference in paragraph (1)(a) to implement or build a systemic weakness, or a systemic vulnerability, into a form of electronic protection includes a reference to one or more actions that would render systemic methods of authentication or encryption less effective.

             (4)  Subsections (2) and (3) are enacted for the avoidance of doubt.

             (5)  A technical assistance notice or technical capability notice has no effect to the extent (if any) to which it would have an effect covered by paragraph (1)(a) or (b).

317ZH   General limits on technical assistance notices and technical capability notices

             (1)  A technical assistance notice or technical capability notice has no effect to the extent (if any) to which it would require a designated communications provider to do an act or thing for which a warrant or authorisation under any of the following laws is required:

                     (a)  the Telecommunications (Interception and Access) Act 1979 ;

                     (b)  the Surveillance Devices Act 2004 ;

                     (c)  the Crimes Act 1914 ;

                     (d)  the Australian Security Intelligence Organisation Act 1979 ;

                     (e)  the Intelligence Services Act 2001 ;

                      (f)  a law of the Commonwealth (other than this Part) that is not covered by paragraph (a), (b), (c), (d) or (e);

                     (g)  a law of a State or Territory.

             (2)  For the purposes of subsection (1):

                     (a)  assume that each law mentioned in that subsection applied both within and outside Australia; and

                     (b)  assume that each reference in Part 13 to a carriage service provider included a reference to a designated communications provider.

             (3)  A technical assistance notice or technical capability notice has no effect to the extent (if any) to which it would require a designated communications provider to:

                     (a)  use a surveillance device (within the meaning of the Surveillance Devices Act 2004 ); or

                     (b)  access data held in a computer (within the meaning of the Surveillance Devices Act 2004 );

if a law of a State or Territory requires a warrant or authorisation for that use or access.

             (4)  To avoid doubt, subsection (1) or (3) does not prevent a technical assistance notice or technical capability notice from requiring a designated communications provider to do an act or thing by way of giving help to:

                     (a)  ASIO; or

                     (b)  an interception agency;

in relation to:

                     (c)  in the case of a technical assistance notice—a matter covered by paragraph 317L(2)(c) or (d); or

                     (d)  in the case of a technical capability notice—a matter covered by subparagraph 317T(2)(b)(i) or (ii);

if the doing of the act or thing would:

                     (e)  assist in, or facilitate, giving effect to a warrant or authorisation under a law of the Commonwealth, a State or a Territory; or

                      (f)  give effect to a warrant or authorisation under a law of the Commonwealth.

             (5)  To avoid doubt, subsection (1) or (3) does not prevent a technical capability notice from requiring a designated communications provider to do an act or thing directed towards ensuring that the provider is capable of giving listed help (within the meaning of section 317T) to:

                     (a)  ASIO; or

                     (b)  an interception agency;

in relation to a matter covered by subparagraph 317T(2)(a)(i) or (ii), if the doing of the act or thing would:

                     (c)  assist in, or facilitate, giving effect to a warrant or authorisation under a law of the Commonwealth, a State or a Territory; or

                     (d)  give effect to a warrant or authorisation under a law of the Commonwealth.

Division 8 General provisions

317ZJ   Immunity

             (1)  A designated communications provider is not subject to any civil liability for, or in relation to, an act or thing done by the provider:

                     (a)  in compliance; or

                     (b)  in good faith in purported compliance;

with:

                     (c)  a technical assistance notice; or

                     (d)  a technical capability notice.

             (2)  Paragraph (1)(b) does not apply to an act or thing done by a designated communications provider unless the act or thing is in connection with any or all of the eligible activities of the provider.

             (3)  An officer, employee or agent of a designated communications provider is not subject to any civil liability for, or in relation to, an act or thing done by the officer, employee or agent in connection with an act or thing done by the provider:

                     (a)  in compliance; or

                     (b)  in good faith in purported compliance;

with:

                     (c)  a technical assistance notice; or

                     (d)  a technical capability notice.

             (4)  Paragraph (3)(b) does not apply to an act or thing done by a designated communications provider unless the act or thing is in connection with any or all of the eligible activities of the provider.

317ZK   Terms and conditions on which help is to be given etc.

Scope

             (1)  This section applies if a designated communications provider is subject to a requirement under:

                     (a)  a technical assistance notice; or

                     (b)  a technical capability notice;

unless:

                     (c)  in the case of a requirement under a technical assistance notice given by the Director-General of Security—the Director-General of Security is satisfied that it would be contrary to the public interest for this section to apply to the requirement; or

                     (d)  in the case of a requirement under a technical assistance notice given by the chief officer of an interception agency—the chief officer is satisfied that it would be contrary to the public interest for this section to apply to the requirement; or

                     (e)  in the case of a requirement under a technical capability notice—the Attorney-General is satisfied that it would be contrary to the public interest for this section to apply to the requirement.

             (2)  In deciding whether it would be contrary to the public interest for this section to apply to a requirement, the Director-General of Security, the chief officer or the Attorney-General, as the case may be, must have regard to the following matters:

                     (a)  the interests of law enforcement;

                     (b)  the interests of national security;

                     (c)  the objects of this Act;

                     (d)  the extent to which compliance with the requirement will impose a regulatory burden on the provider;

                     (e)  the reasons for the giving of the technical assistance notice or technical capability notice, as the case requires;

                      (f)  such other matters (if any) as the Director-General of Security, the chief officer or the Attorney-General, as the case may be, considers relevant.

Basis of compliance

             (3)  The designated communications provider must comply with the requirement on the basis that the provider neither:

                     (a)  profits from complying with the requirement; nor

                     (b)  bears the reasonable costs of complying with the requirement;

unless the provider and the applicable costs negotiator otherwise agree.

Note:          For applicable costs negotiator , see subsection (16).

Terms and conditions

             (4)  The designated communications provider must comply with the requirement on such terms and conditions as are:

                     (a)  agreed between the following parties:

                              (i)  the provider;

                             (ii)  the applicable costs negotiator; or

                     (b)  failing agreement, determined by an arbitrator appointed by the parties.

Note:          For applicable costs negotiator , see subsection (16).

             (5)  If:

                     (a)  the parties fail to agree on the appointment of an arbitrator; and

                     (b)  one of the parties is a carrier or carriage service provider;

the ACMA is to appoint the arbitrator.

             (6)  If:

                     (a)  the parties fail to agree on the appointment of an arbitrator; and

                     (b)  none of the parties is a carrier or carriage service provider;

the Attorney-General is to appoint the arbitrator.

Arbitration

             (7)  An arbitrator appointed under subsection (5) or (6) must be:

                     (a)  a person specified under subsection (8); or

                     (b)  a person who belongs to a class of persons specified under subsection (11).

             (8)  The Minister may, by writing, specify one or more persons for the purposes of paragraph (7)(a).

             (9)  An instrument made under subsection (8) is not a legislative instrument.

           (10)  Subsection 33(3AB) of the Acts Interpretation Act 1901 does not apply to the power conferred by subsection (8).

           (11)  The Minister may, by legislative instrument, specify a class of persons for the purposes of paragraph (7)(b).

           (12)  Before making an instrument under subsection (8) or (11), the Minister must consult the Attorney-General.

           (13)  If an arbitration under this section is conducted by an arbitrator appointed by the ACMA, the cost of the arbitration must be apportioned equally between the parties.

           (14)  The Minister may, by legislative instrument, make provision for and in relation to the conduct of an arbitration under this section.

Acquisition of property

           (15)  This section has no effect to the extent (if any) to which its operation would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) otherwise than on just terms (within the meaning of that paragraph).

Applicable costs negotiator

           (16)  For the purposes of this section, the applicable costs negotiator is:

                     (a)  in the case of a requirement under a technical assistance notice given by the Director-General of Security—the Director-General of Security; or

                     (b)  in the case of a requirement under a technical assistance notice given by the chief officer of an interception agency—the chief officer; or

                     (c)  in the case of a requirement under a technical capability notice—the person specified in the notice, in accordance with subsection 317T(12), as the applicable costs negotiator for the notice.

317ZL   Service of notices etc.

Scope

             (1)  This section applies to:

                     (a)  a summons or process in any proceedings under, or connected with, this Part; or

                     (b)  a summons or process in any proceedings under, or connected with, the Regulatory Powers (Standard Provisions) Act 2014 , so far as that Act relates to this Part; or

                     (c)  a technical assistance notice or any other notice under this Part; or

                     (d)  a notice under the Regulatory Powers (Standard Provisions) Act 2014 , so far as that Act relates to this Part; or

                     (e)  a technical capability notice.

Address for service of summons, process or notice

             (2)  If:

                     (a)  the summons, process or notice, as the case may be, is required to be served on, or given to, a designated communications provider; and

                     (b)  the designated communications provider has nominated an address for service in a document given by the provider to:

                              (i)  the Attorney-General; or

                             (ii)  the Communications Access Co-ordinator; or

                            (iii)  the Director-General of Security; or

                            (iv)  the chief officer of an interception agency;

the summons, process, or notice, as the case may be, is taken to have been served on, or given to, the provider if it is left at, or sent by pre-paid post to, the nominated address for service.

             (3)  If:

                     (a)  the summons, process or notice, as the case may be, is required to be served on, or given to, a designated communications provider; and

                     (b)  the designated communications provider has nominated an electronic address for service in a document given by the provider to:

                              (i)  the Attorney-General; or

                             (ii)  the Communications Access Co-ordinator; or

                            (iii)  the Director-General of Security; or

                            (iv)  the chief officer of an interception agency;

the summons, process or notice, as the case may be, is taken to have been served on, or given to, the provider if it is sent to the nominated electronic address for service.

Service of summons, process or notice on agent etc.

             (4)  If:

                     (a)  the summons, process or notice, as the case may be, is required to be served on, or given to, a body corporate incorporated outside Australia; and

                     (b)  the body corporate does not have a registered office or a principal office in Australia; and

                     (c)  the body corporate has an agent in Australia;

the summons, process or notice, as the case may be, is taken to have been served on, or given to, the body corporate if it is served on, or given to, the agent.

             (5)  If:

                     (a)  the summons, process or notice, as the case may be, is required to be served on, or given to, a body corporate incorporated outside Australia; and

                     (b)  the body corporate does not have a registered office or a principal office in Australia; and

                     (c)  the body corporate carries on business, or conducts activities, at an address in Australia;

the summons, process or notice, as the case may be, is taken to have been served on, or given to, the body corporate if it is left at, or sent by pre-paid post to, that address.

Other matters

             (6)  Subsections (2), (3), (4) and (5) have effect in addition to:

                     (a)  section 28A of the Acts Interpretation Act 1901 ; and

                     (b)  sections 587 and 588 of this Act.

Note:          Section 28A of the Acts Interpretation Act 1901 deals with the service of documents.

317ZM   Interception agency—chief officer and officer

                   For the purposes of this Part, the following table defines:

                     (a)  chief officer of an interception agency; and

                     (b)  officer of an interception agency.

 

Chief officer and officers of interception agencies

Item

Column 1

Column 2

Column 3

 

Interception agency

Chief officer

Officer

1

Australian Federal Police

the Commissioner (within the meaning of the Australian Federal Police Act 1979 )

a member or special member of the Australian Federal Police

2

Australian Commission for Law Enforcement Integrity

the Integrity Commissioner (within the meaning of the Law Enforcement Integrity Commissioner Act 2006 )

(a) the Integrity Commissioner (within the meaning of the Law Enforcement Integrity Commissioner Act 2006 ); or

(b) a staff member of ACLEI (within the meaning of the Law Enforcement Integrity Commissioner Act 2006 )

3

Australian Crime Commission

Chief Executive Officer of the Australian Crime Commission

(a) the Chief Executive Officer of the Australian Crime Commission; or

(b) an examiner (within the meaning of the Australian Crime Commission Act 2002 ); or

(c) a member of the staff of the ACC (within the meaning of the Australian Crime Commission Act 2002 )

4

Police Force of a State or the Northern Territory

the Commissioner of Police (however designated) of that State or Territory

an officer of that Police Force

5

Independent Commission Against Corruption of New South Wales

the Chief Commissioner (within the meaning of the Independent Commission Against Corruption Act 1988 (NSW))

an officer of the Commission (within the meaning of the Independent Commission Against Corruption Act 1988 (NSW)) (other than a person engaged under section 104B of that Act)

6

New South Wales Crime Commission

the Commissioner (within the meaning of the Crime Commission Act 2012 (NSW))

an officer of the Commission (within the meaning of the Crime Commission Act 2012 (NSW)) other than a person engaged under subsection 74(2) of that Act

7

Law Enforcement Conduct Commission of New South Wales

the Chief Commissioner (within the meaning of the Law Enforcement Conduct Commission Act 2016 (NSW))

(a) the Chief Commissioner (within the meaning of the Law Enforcement Conduct Commission Act 2016 (NSW)); or

(b) the Commissioner for Integrity (within the meaning of the Law Enforcement Conduct Commission Act 2016 (NSW)); or

(c) a member of the staff of the Commission (within the meaning of the Law Enforcement Conduct Commission Act 2016 (NSW))

8

Independent Broad-based Anti-corruption Commission of Victoria

the Commissioner (within the meaning of the Independent Broad-based Anti-corruption Commission Act 2011 (Vic.))

a sworn IBAC Officer (within the meaning of the Independent Broad-based Anti-corruption Commission Act 2011 (Vic.))

9

Crime and Corruption Commission of Queensland

the chairperson (within the meaning of the Crime and Corruption Act 2001 (Qld))

a commission officer (as defined by paragraph (a) of the definition of commission officer in the Dictionary to the Crime and Corruption Act 2001 (Qld)) other than a person engaged under section 256 of that Act

10

Independent Commissioner Against Corruption (SA)

the Commissioner (within the meaning of the Independent Commissioner Against Corruption Act 2012 (SA))

(a) the Commissioner (within the meaning of the Independent Commissioner Against Corruption Act 2012 (SA)); or

(b) the Deputy Commissioner; or

(c) a member of the staff of the Independent Commissioner Against Corruption (SA)

11

Corruption and Crime Commission (WA)

the Commissioner (within the meaning of the Corruption, Crime and Misconduct Act 2003 (WA))

an officer of the Commission (within the meaning of the Corruption, Crime and Misconduct Act 2003 (WA)) other than a person engaged under section 182 of that Act

317ZN   Delegation by Director-General of Security

             (1)  The Director-General of Security may, by writing, delegate any or all of the functions or powers of the Director-General of Security under Division 2, 3 or 6 to a senior position-holder (within the meaning of the Australian Security Intelligence Organisation Act 1979 ).

             (2)  A delegate must comply with any written directions of the Director-General of Security.

317ZP   Delegation by Director-General of the Australian Secret Intelligence Service

             (1)  The Director-General of the Australian Secret Intelligence Service may, by writing, delegate any or all of the functions or powers of the Director-General of the Australian Secret Intelligence Service under Division 2 or 6 to a person who:

                     (a)  is a staff member of the Australian Secret Intelligence Service; and

                     (b)  holds, or is acting in, a position in the Australian Secret Intelligence Service that is equivalent to, or higher than, a position occupied by an SES employee.

             (2)  A delegate must comply with any written directions of the Director-General of the Australian Secret Intelligence Service.

317ZQ   Delegation by Director-General of the Australian Signals Directorate

             (1)  The Director-General of the Australian Signals Directorate may, by writing, delegate any or all of the functions or powers of the Director-General of the Australian Signals Directorate under Division 2 or 6 to a person:

                     (a)  who is a staff member of the Australian Signals Directorate; and

                     (b)  who:

                              (i)  is an SES employee, or acting SES employee, in the Australian Signals Directorate; or

                             (ii)  holds, or is acting in, a position in the Australian Signals Directorate that is equivalent to, or higher than, a position occupied by an SES employee.

             (2)  A delegate must comply with any written directions of the Director-General of the Australian Signals Directorate.

317ZR   Delegation by the chief officer of an interception agency

             (1)  The chief officer of an interception agency mentioned in an item of column 1 of the following table may, by writing, delegate any or all of the functions or powers of the chief officer under Division 2, 3 or 6 to a person mentioned in column 2 of the item.

 

Potential delegates

Item

Column 1

Column 2

 

Interception agency

Potential delegates

1

Australian Federal Police

(a) a Deputy Commissioner (within the meaning of the Australian Federal Police Act 1979 ); or

(b) a senior executive AFP employee (within the meaning of the Australian Federal Police Act 1979 )

2

Australian Commission for Law Enforcement Integrity

(a) an Assistant Integrity Commissioner (within the meaning of the Law Enforcement Integrity Commissioner Act 2006 ); or

(b) a staff member of ACLEI (within the meaning of the Law Enforcement Integrity Commissioner Act 2006 ) who is an SES employee or acting SES employee

3

Australian Crime Commission

a member of the staff of the ACC (within the meaning of the Australian Crime Commission Act 2002 ) who is an SES employee or acting SES employee

4

Police Force of a State or the Northern Territory

(a) an Assistant Commissioner of the Police Force or a person holding equivalent rank; or

(b) a Superintendent of the Police Force or a person holding equivalent rank

5

Independent Commission Against Corruption of New South Wales

(a) a Commissioner (within the meaning of the Independent Commission Against Corruption Act 1988 (NSW)); or

(b) an Assistant Commissioner (within the meaning of the Independent Commission Against Corruption Act 1988 (NSW)); or

(c) an officer of the Commission (within the meaning of the Independent Commission Against Corruption Act 1988 (NSW)) (other than a person engaged under section 104B of that Act) who is at executive level

6

New South Wales Crime Commission

an officer of the Commission (within the meaning of the Crime Commission Act 2012 (NSW)) (other than a person engaged under subsection 74(2) of that Act) who is at executive level

7

Law Enforcement Conduct Commission of New South Wales

(a) the Commissioner for Integrity (within the meaning of the Law Enforcement Conduct Commission Act 2016 (NSW)); or

(b) a member of the staff of the Commission (within the meaning of the Law Enforcement Conduct Commission Act 2016 (NSW)) who is at executive level

8

Independent Broad-based Anti-corruption Commission of Victoria

(a) a Deputy Commissioner of the Commission; or

(b) the Chief Executive Officer of the Commission; or

(c) a sworn IBAC Officer (within the meaning of the Independent Broad-based Anti-corruption Commission Act 2011 (Vic.)) who is at executive level

9

Crime and Corruption Commission of Queensland

a senior executive officer (within the meaning of the Crime and Corruption Act 2001 (Qld))

10

Independent Commissioner Against Corruption (SA)

(a) the Deputy Commissioner; or

(b) a member of the staff of the Independent Commissioner Against Corruption who is at executive level

             (2)  A delegate must comply with any written directions of the chief officer.

Executive level

             (3)  For the purposes of this section, a person is at executive level , in relation to an interception agency of New South Wales, if the person occupies an office or position at an equivalent level to that of a Public Service senior executive (within the meaning of the Government Sector Employment Act 2013 (NSW)).

             (4)  For the purposes of this section, a person is at executive level , in relation to an interception agency of Victoria, if the person occupies an office or position at an equivalent level to that of an executive (within the meaning of the Public Administration Act 2004 (Vic.)).

             (5)  For the purposes of this section, a person is at executive level , in relation to an interception agency of South Australia, if the person occupies an office or position at an equivalent level to that of an executive employee (within the meaning of the Public Sector Act 2009 (SA)).

317ZS   Annual reports

             (1)  The Minister must, as soon as practicable after each 30 June, cause to be prepared a written report that sets out:

                     (a)  the number of technical assistance requests that were given during the year ending on that 30 June by the chief officers of interception agencies; and

                     (b)  the number of technical assistance notices that were given during the year ending on that 30 June by the chief officers of interception agencies; and

                     (c)  the number of technical capability notices that were:

                              (i)  given during the year ending on that 30 June; and

                             (ii)  directed towards ensuring that designated communications providers are capable of giving help to interception agencies.

             (2)  A report under subsection (1) must be included in the report prepared under subsection 186(2) of the Telecommunications (Interception and Access) Act 1979 relating to the year ending on that 30 June.

317ZT   Alternative constitutional basis

             (1)  Without limiting its effect apart from this section, this Part also has effect as provided by this section.

             (2)  This Part also has the effect it would have if each reference in this Part to a designated communications provider were, by express provision, confined to a designated communications provider that is a constitutional corporation.

Part 2 Amendments contingent on the commencement of the Federal Circuit and Family Court of Australia Act 2018

Telecommunications Act 1997

8  Subsections 317ZC(3), 317ZD(3) and 317ZE(3)

Omit “Federal Circuit Court of Australia”, substitute “Federal Circuit and Family Court of Australia (Division 2)”.