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Cybercrime Legislation Amendment Bill 2011

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2010 - 2011 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

SENATE

 

 

CYBERCRIME LEGISLATION AMENDMENT BILL 2011

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

 

Amendments to be moved on behalf of the Government

 

 

 

 

(Circulated by authority of the Attorney-General,

the Honourable Robert McClelland MP)



Cybercrime Legislation amendment bill 2011

 

OUTLINE

1.              The main purpose of this Bill is to make amendments necessary to facilitate Australia’s accession to the Council of Europe Convention on Cybercrime (the Convention).  The Bill amends the Telecommunications (Interception and Access) Act 1979 (the TIA Act), the Criminal Code Act 1995 (the Criminal Code), the Mutual Assistance in Criminal Matters Act 1987 (the MA Act) and the Telecommunications Act 1997 to ensure that Australian legislation meets all the Convention’s requirements, subject to certain reservations.  Only after Australian legislation is compliant can Australia accede to the Convention.

2.              The Bill makes the following amendments to existing powers which ensure full compliance with the Convention’s obligations:

·            requires carriers and carriage service providers (C/CSPs) to preserve the stored communications and telecommunications data for specific persons when requested by certain domestic agencies or when requested by Australian Federal Police on behalf of certain foreign countries

·            ensures Australian agencies are able to obtain and disclose telecommunications data and stored communications for the purposes of a foreign investigation

·            provides for the extraterritorial operation of certain offences in the TIA Act

·            amends the computer crime offences in the Criminal Code Act 1995 so that they have adequate scope, and

·            creates confidentiality requirements in relation to authorisations to disclose telecommunications data.

3.              The Government amendments to the Bill will:

·            ensure that Australian agencies are able to obtain and disclose telecommunications data for the purpose of a foreign investigation into an offence which, if the conduct had occurred in Australia, would have been a serious offence for the purpose of the TIA Act

·            delay the ability for interception agencies and the Australian Security Intelligence Organisation to issue ongoing preservation notices until 90 days after the Bill receives Royal Assent

·            make explicit the particular elements of privacy that authorised officers must consider before deciding that an authorisation for a discourse of information or documents is justified

·            create new confidential elements of the TIA Act annual report regarding disclosures to foreign countries



·            ensure the completeness of the application provision for Schedule 5, and

·            make technical corrections.

 

FINANCIAL IMPACT STATEMENT

The amendments made by the Cybercrime Legislation Amendment Bill 2011 will have no fi n ancial impact.

NOTES ON CLAUSES

Amendments 1 to 6 - Schedule 1

Amendments 1 to 6 are technical corrections to reflect the fact that interception agencies are a subset of enforcement agencies within the existing drafting of the TIA Act. These technical corrections do not impact on the operation of the respective provisions.

Amendment 7 - Part 3-1A Transitional Provisions

Amendment 7 inserts a transitional provision into the TIA Act which is applicable to new Part 3-1A - Preserving stored communications. The transitional provision prevents an interception agency or the Australian Security Intelligence Organisation issuing an ongoing preservation notice until 90 days after the Bill receives Royal Assent.  The purpose of this provision to give relevant industry participants an extended period of time in which to ensure they can comply with requests for ongoing preservation. This amendment intends to achieve the same effect as delayed commencement of the ongoing preservation notice regime.  Delayed commencement was not possible due to the operation of section 14B of the Acts Interpretation Act 1901 .

Amendment 8 - Section 15D

Amendment 8 amends proposed new section 15D of the Mutual Assistance in Criminal Matters Act 1987.   New section 15D outlines how the Attorney-General can respond to a request by a foreign country for assistance in relation to telecommunications data.  Subsection 15D(3) sets out when the Attorney-General can authorise the provision of assistance.  Amendment 8 will amend subsection 15D(3) to include an additional circumstance when the Attorney-General can authorise provision of assistance.  Paragraph 15D(3)(b) currently only permits the Attorney-General to authorise disclosure of documents or information to a foreign country for a foreign offence that is punishable by at least 3 years imprisonment.

Amendment 8 omits paragraph 15D(3)(b) and inserts a new paragraph 15D(3)(b).  The amended paragraph 15D(3)(b) will continue to allow the Attorney-General to authorise the disclosure of documents or information to a foreign country under section 180B of the TIA Act for a foreign offence that is punishable by at least 3 years imprisonment, imprisonment for life or the death penalty, but will also allow authorisation if the conduct constituting the offence would have amounted to a serious offence if the conduct had occurred in Australia.  “Serious offence” is defined in section 5D of the TIA Act.  This change ensures that the threshold for offences for which prospective telecommunications data is available to foreign countries is consistent with the threshold for domestic offences.  Consistency in the approach to the availability of this information for domestic and foreign purposes is a requirement of article 33(2) of the Convention.

Amendment 9 - subsection 180B(3)

Proposed new subsection 180B will set out when an authorised officer is able to authorise the disclosure of prospective information or documents for the enforcement of the criminal law of a foreign country.  The Attorney-General must have authorised the making of the authorisation under section 15D of the MA Act and   the officer must be satisfied that the disclosure isreasonably necessary for the investigation of an offence against a law of a foreign country, and is appropriate in all the circumstances. 

Amendment 9 omits paragraph 180B(3)(b) and inserts a new paragraph 180B(3)(b) which will continue to allow disclosure that is reasonably necessary for the investigation of a foreign offence that is punishable by 3 years imprisonment, imprisonment for life or the death penalty.  However, it will also allow for authorisation of the disclosure where it is reasonably necessary for the investigation of an offence where the conduct constituting the offence would have amounted to a serious offence if the conduct had occurred in Australia.  “Serious offence” is defined in section 5D of the TIA Act.  This change ensures consistency of thresholds and access for domestic and foreign purposes and will ensure Australia is compliant with article 33(2) of the Convention.

Amendment 10 - subsection 180B(6)

Proposed new subsection 180B(6) sets out the process for extending an authorisation for prospective information or documents made under subsection 180B(2).  Amendment 10 omits paragraph 180B(6)(a) and inserts a new paragraph 180B(6)(a) which will continue to allow extension of an authorisation where it is reasonably necessary for the investigation of a foreign offence that is punishable by 3 years imprisonment, imprisonment for life or the death penalty.  However, it will also allow for extension of the authorisation where it is reasonably necessary for the investigation of an offence where the conduct constituting the offence would have amounted to a serious offence if the conduct had occurred in Australia.  “ Serious offence” is defined in section 5D of the TIA Act    This change ensures consistency of thresholds and access for domestic and foreign purposes and will ensure Australia is compliant with article 33(2) of the Convention.

Amendment 11 - subsection 180B(8)

Proposed new subsection 180B(8) will outline when prospective information or documents disclosed to the AFP as a result of an authorisation under subsection 180B(2) will be able to be disclosed to a foreign law enforcement agency.  Amendment 11 omits paragraph 180B(8)(a) and inserts a new paragraph 180B(8)(a) which will continue to allow for disclosure where it is reasonably necessary for the investigation of a foreign offence that is punishable by 3 years imprisonment, imprisonment for life or the death penalty.  However, it will also allow for disclosure where it is reasonably necessary for the investigation of an offence where the conduct constituting the offence would have amounted to a serious offence if the conduct had occurred in Australia. Serious offence is defined in section 5D of the TIA Act.   This change ensures consistency of thresholds and access for domestic and foreign purposes and will ensure Australia is compliant with article 33(2) of the Convention.

Amendment 12 - section 180F

Amendment 12 provides detailed guidance to authorised officers about the particulars of weighing and balancing privacy considerations prior to making any authorisation under Division 4 and 4A of Part 4-1 of the TIA Act. This will ensure that privacy considerations are taken into account for every disclosure of historical and prospective telecommunications data under Division 4 and 4A.  This amendment is proposed in response to recommendation 4 of the Joint Select Committee on Cyber-Safety’s Review of the Cybercrime Legislation Amendment Bill 2011 .

The authorised officer is required to decide whether the foreseeable privacy impacts, including to third parties, of a disclosure are justifiable having regard to the magnitude or nature of that privacy impact; the likely relevance or useful to the agency or investigation of the information or documents which are sought to be disclosed; and the reason for the proposed authorisation. Paragraph (b) refers to particular reason for the proposed authorisation, such as the nature and gravity of the crime being investigated or the particulars of the search for the missing person.

This requirement is an extension of the current requirement in subsection 180(5) which applies to an authorisation for the disclosure of prospective telecommunications data for domestic purposes (subsection 180(5) will be repealed by the Bill).

For the purposes of the Bill, privacy is intended to be interpreted more broadly than is considered by the Privacy Act 1988 , which regulates the collection, use, disclosure and storage of personal information, as defined in that Act.  The Bill’s intent is for wider considerations to be made prior to making an authorisation.

Amendment 13 - paragraph 186(1)(c)

Amendment 13 specifies that the head of the AFP must give the Minister an annual report of instances where the AFP has disclosed existing or prospective information or documents to a foreign country (under sections 180A, 180B, 180C and 180D of the TIA Act).  The information should include the number of disclosures that were made to each country.  This strengthened reporting requirement is proposed in response to recommendation 9 of the Joint Select Committee on Cyber-Safety’s Review of the Cybercrime Legislation Amendment Bill 2011 .

Amendment 14- Subsection 186(2)

Subsection 186(2) requires the Minister to prepare a report noting all of the authorisations for access to existing and prospective information or documents that were granted under sections 178, 178A, 179 and 180 of the TIA Act.  Amendment 3 excludes from the public reporting requirement instances where the AFP has disclosed existing or prospective information or documents to a foreign country (under sections 180A, 180B, 180C and 180D of the TIA Act).  This exclusion is consistent with international practice that police to police assistance and assistance in response to a mutual assistance request remain confidential.  Making this information publicly available could compromise international investigations and the strength of Australia’s cooperative relationships with foreign law enforcement agencies. 

Amendment 15- Application of amendments

Amendment 15 repeals the existing applications provision to facilitate the addition of a more robust version.

Amendment 16 - Application of amendment

Amendment 16 clarifies that the change to the offences in subsection 7(1) and section 63 apply after Schedule 5 comes into force.  The application provision also clarifies that the change to allow real-time traffic data in all the circumstances in which interception is available applies only in relation to notices made after the commencement of this schedule.

Schedule 5 does not retrospectively criminalise any activity.