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Schedule 1—Section 11C foreign intelligence warrants

Schedule 1 Section 11C foreign intelligence warrants

   

Telecommunications (Interception and Access) Act 1979

1  Before subsection 11C(1)

Insert:

Issue of warrant

2  Paragraph 11C(1)(a)

Omit “foreign communications for the purpose of obtaining foreign intelligence relating to a matter specified in the notice”, substitute “communications for the purpose of obtaining foreign intelligence relating to a matter specified in the notice from foreign communications intercepted under the warrant”.

3  Subparagraph 11C(1)(b)(ii)

Omit “foreign communications in order to collect the intelligence referred to in paragraph (a)”, substitute “communications in order to obtain that foreign intelligence from foreign communications intercepted under the warrant”.

4  Subsection 11C(1)

Omit “foreign communications for the purpose of obtaining that intelligence”, substitute “communications for the purpose of obtaining that foreign intelligence from foreign communications intercepted under the warrant”.

5  Subsection 11C(2)

Omit “except foreign communications”, substitute “except for the purpose of obtaining foreign intelligence relating to a matter specified in the notice referred to in subsection (1) from foreign communications intercepted under the warrant”.

6  Paragraph 11C(3)(a)

Repeal the paragraph, substitute:

                     (a)  specify how the interception of communications is proposed to be conducted under the warrant, including how the risk of intercepting domestic communications will be minimised; and

7  Subsection 11C(4)

Repeal the subsection, substitute:

             (4)  The Attorney-General must not issue a warrant under this section if the mandatory procedure under subsection (6) is not in force.

          (4A)  If a warrant is issued under this section, then the Director-General of Security must prepare a notice that:

                     (a)  is addressed to any carrier who operates any part of the telecommunications system that is covered by the warrant; and

                     (b)  gives a description that is sufficient to identify that part of the telecommunications system covered by the warrant;

unless the Attorney-General is satisfied that the giving of such a notice would not be in the interests of national security or reasonable in the circumstances.

8  Before subsection 11C(5)

Insert:

Destruction of irrelevant intercepted communications

9  Subsection 11C(5)

Omit all the words after “Director-General of Security” (last occurring), substitute:

must:

                     (c)  cause all records of the communication to be destroyed (unless the communication relates, or appears to relate, to activities that present a significant risk to a person’s life); and

                     (d)  cause the Inspector-General of Intelligence and Security to be notified of the communication if all records of the communication are not caused to be destroyed because the communication relates, or appears to relate, to activities that present a significant risk to a person’s life.

10  After subsection 11C(5) (before the note)

Insert:

Mandatory procedure for all intercepted communications

             (6)  The Attorney-General must, in writing, issue a mandatory procedure (the mandatory procedure ):

                     (a)  for screening communications intercepted under a warrant under this section for the purpose of identifying any domestic communications that may have been intercepted; and

                     (b)  for destroying all records of any domestic communication so identified from that screening (other than a domestic communication that relates, or appears to relate, to activities that present a significant risk to a person’s life); and

                     (c)  for notifying the Inspector-General of Intelligence and Security of any identified domestic communication if all records of the communication are not destroyed because the communication relates, or appears to relate, to activities that present a significant risk to a person’s life.

             (7)  The mandatory procedure may also deal with other matters relating to communications intercepted under a warrant under this section.

             (8)  A person must comply with the mandatory procedure to the extent that it applies to the person.

             (9)  Before issuing or varying the mandatory procedure, the Attorney-General must consult:

                     (a)  the Minister for Defence; and

                     (b)  the Minister for Foreign Affairs; and

                     (c)  the Inspector-General of Intelligence and Security; and

                     (d)  the Director-General of Security.

           (10)  The Attorney-General must review the mandatory procedure as soon as practicable after:

                     (a)  the end of the first anniversary of the mandatory procedure being issued; and

                     (b)  every 3-year period after that;

but the Attorney-General may review the mandatory procedure at any other time as well.

           (11)  The mandatory procedure, or any variation of the mandatory procedure, is not a legislative instrument.

           (12)  For the purposes of this section, a domestic communication is a communication that is not a foreign communication.

11  Section 14 (note)

After “subsection 11C(5)”, insert “and paragraph 11C(6)(b)”.

12  After paragraph 15(7)(b)

Insert:

             and (ba)  the carrier is required to be given a notice under subsection 11C(4A) in relation to the warrant;

13  Paragraph 15(7)(d)

Repeal the paragraph, substitute:

                     (d)  that authorised representative to be given the notice under subsection 11C(4A) as soon as reasonably practicable.

14  Application of amendments

The amendments made by this Schedule apply in relation to applications made after the commencement of this Schedule for the issue of a warrant.