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Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2015

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7672

2013-2014-2015

 

The Parliament of the

Commonwealth of Australia

 

THE SENATE

 

 

 

 

 

Telecommunications ( Interception and Access) Amendment (Data Retention) Bill 2015

 

 

(1)     Schedule 1, item 6L, page 34 (lines 8 to 10), omit paragraph 180G(1)(b), substitute:

                     (b)  a purpose, effect or likely effect of making the authorisation would be to identify another person whom the eligible person knows or reasonably believes may be a source;

[effect of authorisation]

(2)     Schedule 1, item 6L, page 34 (lines 26 to 28), omit paragraph 180H(1)(b), substitute:

                     (b)  a purpose, effect or likely effect of making the authorisation would be to identify another person whom the authorised officer knows or reasonably believes may be a source;

[effect of authorisation]

(3)     Schedule 1, item 6L, page 35 (after line 28), at the end of section 180K, add:

Note:          If further information is required, a Public Interest Advocate must be notified, see section 180X.

[ Public Interest Advocate]

(4)     Schedule 1, item 6L, page 36 (lines 5 to 28), omit subsection 180L(2), substitute:

             (2)  The Minister must not issue a journalist information warrant unless:

                     (a)  the Minister has given the Public Interest Advocate reasonable notice of the request for the warrant in accordance with section 180X; and

                     (b)  the Minister has:

                              (i)  given the person to whom the warrant request relates reasonable notice, in writing, of the request for the warrant; and

                             (ii)  invited the person to make a submission on the request; and

                     (c)  the Minister is satisfied that:

                              (i)  the Organisation’s functions would extend to the making of authorisations under Division 3 in relation to the particular person; and

                             (ii)  the public interest in issuing the warrant outweighs the public interest in protecting the confidentiality of the identity of the source in connection with whom authorisations would be made under the authority of the warrant, having regard to the matters in subsection (2B).

          (2A)  In making his or her decision to issue or refuse a journalist information warrant, the Minister must give greatest weight to the matter mentioned in paragraph (2B)(a).

          (2B)  For the purposes of subparagraph (2)(c)(ii), the matters are the following:

                     (a)  the public interest in the communication of facts and opinion to the public by a free media, and, accordingly in the ability of the media to access sources of facts on the basis that confidentiality of the identity of the source will be protected;

                     (b)  the extent to which the privacy of any person or persons would be likely to be interfered with by the disclosure of information or documents under authorisations that are likely to be made under the authority of the warrant;

                     (c)  the gravity of the matter in relation to which the warrant is sought;

                     (d)  the extent to which that information or those documents would be likely to assist in the performance of the Organisation’s functions;

                     (e)  whether reasonable attempts have been made to obtain the information or documents by other means;

                      (f)  any submissions made by a Public Interest Advocate under section 180X;

                     (g)  any submissions made by the person to whom the warrant request relates;

                     (h)  any other matters the Minister considers relevant.

[paramount consideration]

(5)     Schedule 1, item 6L, page 37 (line 26), omit “paragraphs 180L(2)(a) and (b)”, substitute “subparagraphs 180L(2)(c)(i) and (ii)”.

[paramount consideration]

(6)     Schedule 1, item 6L, page 37 (line 29), omit “paragraphs 180L(2)(a) and (b)”, substitute “subparagraphs 180L(2)(c)(i) and (ii)”.

[paramount consideration]

(7)     Schedule 1, item 6L, page 40 (after line 23), at the end of section 180R, add:

Note:          If further information is required, a Public Interest Advocate must be notified, see section 180X.

[ Public Interest Advocate]

(8)     Schedule 1, item 6L, page 41 (line 9) to page 42 (line 10), omit subsection 180T(2), substitute:

             (2)  The Part 4-1 issuing authority must not issue a journalist information warrant unless:

                     (a)  the Part 4-1 issuing authority has given the Public Interest Advocate reasonable notice of the application for the warrant in accordance with section 180X; and

                     (b)  the Part 4-1 issuing authority has:

                              (i)  given the person to whom the warrant application relates reasonable notice, in writing, of the application for the warrant; and

                             (ii)  invited the person to make a submission on the application; and

                     (c)  the Part 4-1 issuing authority is satisfied that:

                              (i)  the warrant is reasonably necessary for whichever of the purposes set out in subsection (4) is applicable; and

                             (ii)  the public interest in issuing the warrant outweighs the public interest in protecting the confidentiality of the identity of the source in connection with whom authorisations would be made under the authority of the warrant, having regard to the matters set out in subsection (5).

             (3)  In making a decision to issue or refuse to issue a journalist information warrant, the Part 4-1 issuing authority must give greatest weight to the matter mentioned in paragraph (5)(a).

             (4)  For the purposes of subparagraph (2)(c)(i), the purposes are the following:

                     (a)  if the warrant would authorise the making of authorisations under section 178—for the enforcement of the criminal law;

                     (b)  if the warrant would authorise the making of authorisations under section 178A—finding a person who the Australian Federal Police, or a Police Force of a State, has been notified is missing;

                     (c)  if the warrant would authorise the making of authorisations under section 179—the enforcement of a law imposing a pecuniary penalty or for the protection of the public revenue;

                     (d)  if the warrant would authorise the making of authorisations under section 180—the investigation of an offence of a kind referred to in subsection 180(4).

             (5)  For the purposes of subparagraph (2)(c)(ii), the matters are the following:

                     (a)  the public interest in the communication of facts and opinion to the public by a free media, and, accordingly in the ability of the media to access sources of facts on the basis that confidentiality of the identity of the source will be protected;

                     (b)  the extent to which the privacy of any person or persons would be likely to be interfered with by the disclosure of information or documents under authorisations that are likely to be made under the authority of the warrant;

                     (c)  the gravity of the matter in relation to which the warrant is sought;

                     (d)  the extent to which that information or those documents would be likely to assist in relation to that matter;

                     (e)  whether reasonable attempts have been made to obtain the information or documents by other means;

                      (f)  any submissions made by a Public Interest Advocate under section 180X;

                     (g)  any submissions made by the person to whom the warrant application relates;

                     (h)  any other matters the Part 4-1 issuing authority considers relevant.

[paramount consideration]

(9)     Schedule 1, item 6L, page 43 (lines 12 to 28), omit section 180X, substitute:

180X   Public Interest Advocates

             (1)  The Prime Minister shall declare, in writing, one or more persons to be Public Interest Advocates.

Notice to be given to Public Interest Advocates

             (2)  If a notice is given to a Public Interest Advocate under section 180L in relation to a request for a journalist information warrant, or under 180T in relation to an application for a journalist information warrant, the notice must:

                     (a)  be in writing; and

                     (b)  include:

                              (i)  the information and material that was provided with the request or application, as the case may be; and

                             (ii)  the additional information or material (if any) that is prescribed by the regulations.

Further notice if additional information provided

             (3)  If:

                     (a)  the Minister requires the Director-General of Security to give further information under section 180K in connection with a request; and

                     (b)  the Director-General gives the further information or refuses to give the further information;

then the Minister must notify the Public Interest Advocate, in writing, of the further information or the refusal as soon as practicable.

             (4)  If:

                     (a)  the Part 4-1 issuing authority requires the chief officer of an enforcement agency, or a person other than the chief of the agency, to give further information under section 180R in connection with an application; and

                     (b)  the chief officer, or the other person, gives the further information or refuses to give the further information;

then the Part 4-1 issuing authority must notify the Public Interest Advocate, in writing, of the further information or the refusal as soon as practicable.

Submissions

             (5)  A Public Interest Advocate may make submissions:

                     (a)  to the Minister about matters relevant to:

                              (i)  a decision to issue, or refuse to issue, a journalist information warrant under section 180L; or

                             (ii)  a decision about the conditions or restrictions (if any) that are to be specified in such a warrant; or

                     (b)  to a Part 4-1 issuing authority about matters relevant to:

                              (i)  a decision to issue, or refuse to issue, the warrant under section 180T; or

                             (ii)  a decision about the conditions or restrictions (if any) that are to be specified in such a warrant.

             (6)  In making a submission under subsection (5), a Public Interest Advocate must have particular regard to protecting the public interest and the need to act as a contradictor to the person requesting, or applying for, the journalist information warrant.

Regulations

             (7)  The regulations may prescribe matters relating to the performance of the role of a Public Interest Advocate.

Declaration not legislative instrument

             (8)  A declaration under subsection (1) is not a legislative instrument.

[paramount consideration; Public Interest Advocate]

(10)   Schedule 1, item 6V, page 46 (lines 13 to 31), omit section 182A, substitute:

182A   Disclosure/use offences: journalist information warrants

             (1)  A person commits an offence if:

                     (a)  the person discloses or uses information; and

                     (b)  the information is about any of the following:

                              (i)  whether a journalist information warrant (other than such a warrant that relates only to section 178A) has been, or is being, requested or applied for;

                             (ii)  the making of such a warrant;

                            (iii)  the existence or non-existence of such a warrant;

                            (iv)  the revocation of such a warrant; and

                     (c)  the person knows that the information is about a warrant as set out in paragraph (b); and

                     (d)  at the time of the disclosure or use, the matter to which the warrant relates is ongoing.

Penalty:  Imprisonment for 2 years.

             (2)  A person commits an offence if:

                     (a)  the person discloses or uses a document; and

                     (b)  the document consists (wholly or partly) of any of the following:

                              (i)  a journalist information warrant (other than such a warrant that relates only to section 178A);

                             (ii)  the revocation of such a warrant; and

                     (c)  the person knows that the document consists (wholly or partly) of the warrant or the revocation of the warrant; and

                     (d)  at the time of the disclosure or use, the matter to which the warrant relates is ongoing.

Penalty:  Imprisonment for 2 years.

[disclosure/use offences]

(11)   Schedule 1, item 6V, page 47 (before line 4), before paragraph 182B(a), insert:

                    (aa)  both:

                              (i)  the disclosure or use is by a person working in a professional capacity as a journalist; and

                             (ii)  the information or document is disclosed or used in that capacity for the purpose of disseminating information on a matter of public interest; or

[disclosure/use offences]

(12)   Schedule 1, item 6X, page 48 (before line 1), before section 185D, insert:

185CA   Evidentiary certificate relating to ongoing Ombudsman matter

             (1)  The Director-General of Security or the Deputy Director-General of Security may issue a written certificate signed by him or her setting out:

                     (a)  whether a matter involving the grounds on which a journalist information warrant was issued is ongoing; and

                     (b)  whether the matter was ongoing on a specified date.

             (2)  A document purporting to be a certificate issued under subsection (1) by the Director-General of Security or the Deputy Director-General of Security and to be signed by him or her:

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

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

Note:          An evidentiary certificate issued under this section relates to an offence under section 182A.

185CB   Evidentiary certificate relating to ongoing enforcement agency matter

             (1)  A certifying offer of an enforcement agency may issue a written certificate signed by him or her setting out:

                     (a)  whether a matter involving the grounds on which a journalist information warrant was issued is ongoing; and

                     (b)  whether the matter was ongoing on a specified date.

             (2)  A document purporting to be a certificate issued under subsection (1) by a certifying officer of an enforcement agency and to be signed by him or her:

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

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

Note:          An evidentiary certificate issued under this section relates to an offence under section 182A.

[disclosure/use offences]

(13)   Page 84 (after line 31), at the end of the Bill, add:

Schedule 4 Disclosure by journalists

   

 

Australian Security Intelligence Organisation Act 1979

1  Subsections 35P(1), (2) and (3)

Repeal the subsections, substitute:

Unauthorised disclosure of information

             (1)  A person commits an offence if:

                     (a)  the person discloses information; and

                     (b)  the information relates to a special intelligence operation; and

                     (c)  the person knows that the information relates to a special intelligence operation.

Penalty:  Imprisonment for 5 years.

Unauthorised disclosure of information—endangering safety, etc.

             (2)  A person commits an offence if:

                     (a)  the person discloses information; and

                     (b)  the information relates to a special intelligence operation; and

                     (c)  the person knows that the information relates to a special intelligence operation; and

                     (d)  the person intends the disclosure of information to endanger the health or safety of any person or prejudice the effective conduct of a special intelligence operation.

Penalty:  Imprisonment for 10 years.

Exceptions

             (3)  Subsections (1) and (2) do not apply if:

                     (a)  the disclosure was in connection with the administration or execution of this Division; or

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

                     (c)  the disclosure was in accordance with any requirement imposed by law; or

                     (d)  the disclosure was in connection with the performance of functions or duties, or the exercise of powers, of the Organisation; or

                     (e)  the disclosure was for the purpose of obtaining legal advice in relation to the special intelligence operation; or

                      (f)  the disclosure was to an IGIS official for the purpose of the Inspector-General of Intelligence and Security exercising powers, or performing functions or duties, under the Inspector-General of Intelligence and Security Act 1986 ; or

                     (g)  the disclosure was by an IGIS official in connection with the IGIS official exercising powers, or performing functions or duties, under that Act; or

                     (h)  the disclosure was:

                              (i)  by a person who was working in a professional capacity as a journalist, or an employer of such a person; and

                             (ii)  published in good faith in a report or commentary about a matter of public interest; and

                            (iii)  the report was not likely to enable an ASIO employee, ASIO affiliate, a staff member of ASOS or an IGIS official to be identified.

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

          (3A)  Without limiting paragraph (3)(h), a disclosure is about a matter of public interest if it relates to one or more of the following:

                     (a)  a matter that increases the ability of the public to scrutinise and debate issues of national security;

                     (b)  a matter that would promote the integrity and accountability of the Organisation, ASIS or the Inspector-General of Intelligence and Security in relation to national security and other related issues;

                     (c)  conduct that:

                              (i)  contravenes a law of the Commonwealth, a State or a Territory; or

                             (ii)  contravenes a law of a foreign country; or

                            (iii)  is engaged in for the purpose of perverting, or attempting to pervert, the course of justice; or

                            (iv)  is engaged in for the purpose of corruption; or

                             (v)  constitutes maladministration; or

                            (vi)  constitutes an abuse of public trust; or

                           (vii)  involves an official of a public agency abusing his or her position as an official of that agency; or

                          (viii)  could, if proved, give reasonable grounds for disciplinary action against an official of a public agency.

Crimes Act 1914

2  At the end of subsection 3ZZHA(2)

Add:

                   ; (g)  the disclosure is:

                              (i)  made by a person who is working in a professional capacity as a journalist, or an employer of such a person; and

                             (ii)  published in good faith in a report or commentary about a matter of public interest; and

                            (iii)  the report or commentary is not likely to enable an officer of the Australian Security Intelligence Organisation, a staff member of the Australian Secret Intelligence Service, or a staff member of the Inspector-General of Intelligence Services to be identified.

3  At the end of section 3ZZHA

Add:

             (3)  Without limiting paragraph (3)(h), a disclosure is about a matter of public interest if it relates to one or more of the following:

                     (a)  a matter that increases the ability of the public to scrutinise and debate issues of national security;

                     (b)  a matter that would promote the integrity and accountability of the Australian Security Intelligence Organisation, the Australian Secret Intelligence Service or the Inspector-General of Intelligence Services in relation to national security and other related issues;

                     (c)  conduct that:

                              (i)  contravenes a law of the Commonwealth, a State or a Territory; or

                             (ii)  contravenes a law of a foreign country; or

                            (iii)  is engaged in for the purpose of perverting, or attempting to pervert, the course of justice; or

                            (iv)  is engaged in for the purpose of corruption; or

                             (v)  constitutes maladministration; or

                            (vi)  constitutes an abuse of public trust; or

                           (vii)  involves an official of a public agency abusing his or her position as an official of that agency; or

                          (viii)  could, if proved, give reasonable grounds for disciplinary action against an official of a public agency.

Criminal Code Act 1995

4  Paragraph 119.7(2)(b) of the Criminal Code

Repeal the paragraph, substitute:

                     (b)  the person publishes the advertisement or item of news intending to encourage the recruitment of persons to serve in any capacity in or with an armed force in a foreign country.

5  After paragraph 119 .7(3)(b) of the Criminal Code

Insert:

                   ; (c)  the publication of the advertisement or item of news was not in the public interest.

[national security disclosures]