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Schedule 5—Judicial agreement to notice

Schedule 5 Judicial agreement to notice

   

Telecommunications Act 1997

1  Section 317B

Insert:

eligible Judge has the meaning given by section 317DA.

2  After section 317D

Insert:

317DA  Eligible judge

             (1)  In this Part:

eligible Judge means a person in relation to whom a consent under subsection (2) and a declaration under subsection (3) are in force.

Judge means a person who is a Judge of a court created by the Parliament.

             (2)  A Judge may, by writi ng, consent to be declared an eligible Judge under subsection (3) by the Minister.

             (3)  The Minister or the Attorney-General may, by writing, declare Judges in relation to whom consents are in force under subsection (2) to be eligible Judges for the purposes of this Act.

             (4)  Any function or power conferred on the Judge under this Part is so conferred only in a personal capacity and not as a court or a member of a court.

             (5)  An eligible Judge has, in relation to the performance or exercise of a function or power conferred on an eligible Judge by this Part, the same protection and immunity as a Justice of the High Court has in relation to proceedings in the High Court.

             (6)  An instrument declaring a Judge to be an eligible Judge is not a legislative instrument .

3  Section 317P

Repeal the section, substitute:

317P   Decision-making criteria

             (1)  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:

                     (a)  the Director-General of Security or the chief officer, as the case requires, is satisfied that:

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

                             (ii)  compliance with the notice is practicable and technically feasible; and

                     (b)  an eligible Judge has approved the giving of the notice.

Note:          See also section 317RA

             (2)  An eligible Judge must not approve the giving of the notice unless the eligible Judge is satisfied, on information given on oath or affirmation, that:

                     (a)  the designated communications provider to whom the notice is to be given can comply with the notice; and

                     (b)  the notice can validly be given under this Part; and

                     (c)  a provision of this Part does not prevent the notice from having effect; and

                     (d)  the designated communications provider has, if reasonably practicable, been consulted and given a reasonable opportunity to make submissions on whether the requirements to be imposed by the notice are reasonable and proportionate and whether compliance with the notice is practicable and technically feasible.

             (3)  If an eligible Judge refuses to approve the giving of the technical assistance notice, the eligible Judge must give written reasons for the refusal to the Director-General or the chief officer, as the case requires.

4  Subsection 317Q(10)

Repeal the subsection, substitute:

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:

                     (a)  the Director-General of Security or the chief officer, as the case requires, is satisfied that:

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

                             (ii)  compliance with the varied notice is practicable and technically feasible; and

                     (b)  an eligible Judge has approved the variation.

Note:          See also section 317RA.

        (10A)  An eligible Judge must not approve the variation of the notice unless the eligible Judge is satisfied, on information given on oath or affirmation, that:

                     (a)  the designated communications provider to whom the notice was given can comply with the varied notice; and

                     (b)  the varied notice could validly be given under this Part; and

                     (c)  a provision of this Part does not prevent the varied notice from having effect; and

                     (d)  the designated communications provider to whom the notice was given has, if reasonably practicable, been consulted and given a reasonable opportunity to make submissions on whether the requirements to be imposed by the varied notice are reasonable and proportionate and whether compliance with the varied notice is practicable and technically feasible.

Reasons for refusal of approval by eligible Judge

        (10B)  If an eligible Judge refuses to approve the variation of the technical assistance notice, the eligible Judge must give written reasons for the refusal to the Director-General or the chief officer, as the case requires.

5  Section 317V

Repeal the section, substitute:

317V   Decision-making criteria

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

                     (a)  the Attorney-General is satisfied that:

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

                             (ii)  compliance with the notice is practicable and technically feasible; and

                     (b)  an eligible Judge has approved the giving of the notice.

Note:          See also section 317ZAA.

             (2)  An eligible Judge must not approve the giving of the notice unless the eligible Judge is satisfied, on information given on oath or affirmation, that:

                     (a)  the designated communications provider to whom the notice is to be given can comply with the notice; and

                     (b)  the notice can validly be given under this Part; and

                     (c)  a provision of this Part does not prevent the notice from having effect; and

                     (d)  the designated communications provider has, if reasonably practicable, been consulted and given a reasonable opportunity to make submissions on whether the requirements to be imposed by the notice are reasonable and proportionate and whether compliance with the notice is practicable and technically feasible.

             (3)  If an eligible Judge refuses to approve the giving of the technical capability notice, the eligible Judge must give written reasons for the refusal to the Attorney-General .

6  Subsection 317X(4)

Repeal the subsection, substitute:

Decision-making criteria

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

                     (a)  the Attorney-General is satisfied that:

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

                             (ii)  compliance with the varied notice is practicable and technically feasible; and

                     (b)  an eligible Judge has approved the variation.

Note:          See also section 317ZAA.

          (4A)  An eligible Judge must not approve the variation of the notice unless the eligible Judge is satisfied, on information given on oath or affirmation, that:

                     (a)  the designated communications provider to whom the notice was given can comply with the varied notice; and

                     (b)  the varied notice could validly be given under this Part; and

                     (c)  a provision of this Part does not prevent the varied notice from having effect; and

                     (d)  the designated communications provider to whom the notice was given has, if reasonably practicable, been consulted and given a reasonable opportunity to make submissions on whether the requirements to be imposed by the varied notice are reasonable and proportionate and whether compliance with the varied notice is practicable and technically feasible.

Reasons for refusal of approval by eligible Judge

          (4B)  If an eligible Judge refuses to approve the variation of the technical capability notice, the eligible Judge must give written reasons for the refusal to the Attorney-General .