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2008
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
TELECOMMUNICATIONS (INTERCEPTION AND ACCESS) AMENDMENT BILL 2008
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be Moved
On Behalf of the Government
(Circulated by authority of the Attorney-General,
the Honourable Robert McClelland MP)
TELECOMMUNICATIONS (INTERCEPTION AND ACCESS)
AMENDMENT BILL 2008
OUTLINE
The Telecommunications (Interception and Access) Amendment Bill 2008 (the Bill)
as introduced amends the Telecommunications (Interception and Access) Act 1979
(the TIA Act) to:
· Extend the sunset provisions which apply to the definitions of when a
communication is `passing over' a telecommunications network, as well as the
definition of an `intended recipient' of a communication by a further 18
months,
· Clarify agencies' reporting requirements under the TIA Act,
· Clarify that multiple telecommunications devices can be intercepted under the
one named person warrant, and
· Make minor and technical amendments arising from the transfer of duties
from the Australian Federal Police (AFP) to the Attorney-General's
Department following the passage of the Telecommunications (Interception)
Amendment Act 2006.
The Government amendments to the Bill will:
· strengthen the reporting requirements of the TIA Act by requiring more
detailed reporting in relation to services intercepted under a named person
warrant, as well as additional reporting on the total number of devices
intercepted under a named person warrant,
· remove the proposed provisions in the Bill that enable devices to be added to
device-based named person warrants after they are issued and the associated
reporting requirements, and
· consequent on the above amendment, make technical adjustments to the
proposed provisions in the Bill that enable device-based named person
warrants to be issued in relation to multiple devices.
FINANCIAL IMPACT STATEMENT
There are no direct financial impacts from these amendments.
NOTES ON CLAUSES
Amendment 1 - Commencement
Amendment 1 amends the commencement provisions in relation to Schedule 1 of the
Bill.
Items 38 and 39, items 40 to 43, items 44 to 46 and items 47 and 48 of Schedule 1
will commence on the day on which this Act receives the Royal Assent.
Item 39A of Schedule 1 will commence at the same time as the provision(s) covered
by table item 3. This item relates to device-based named person warrants and will
require administrative procedures to be put in place before commencement. These
items will therefore commence on a date to be fixed by proclamation. If at the end of
six months after Royal Assent, these items have not been proclaimed, they will
commence on the following day.
Items 43A and 46A of Schedule 1 will commence on 1 July 2008, to allow the
required administrative processes to be implemented and to align with the annual
reporting period.
Amendments 2, 3, 4 and 5 - Section 9A
Section 9A allows the Director-General of Security to apply to the Attorney-General
for the issue of named person warrants. Named person warrants can relate to either
telecommunications services being used by a person, or `a particular
telecommunications device' used or likely to be used by the person suspected of
being engaged in or of being likely to engage in activities prejudicial to security.
Amendment 2 amends items 3 to 5 of Schedule 1 of the Bill to provide that a
device-based named person warrant issued under section 9A gives the authority to
intercept one or more telecommunications devices that are specified in the warrant.
Amendments 3, 4, and 5 make consequential amendments to items 6 and 7 of
Schedule 1 of the Bill as a result of Amendment 2.
Amendments 6, 7, 8, and 9 - Section 11B
Section 11B allows the Director-General of Security to apply to the Attorney-General
for the issue of named person telecommunications interception warrants for the
collection of foreign intelligence. Named person warrants can relate to either
telecommunications services being used by a person, or `a particular
telecommunications device' used or likely to be used by the person.
Amendment 6 amends items 8 to 10 of Schedule 1 of the Bill to provide that a
device-based named person warrant issued under section 11B gives authority to
intercept one or more telecommunications devices that are specified in the warrant.
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Amendments 7, 8 and 9 make consequential amendments to Items 11 and 12 of
Schedule 1 of the Bill as a result of Amendment 6.
Amendment 10 - Section 16
Section 16 requires a `certifying person' to notify the Managing Director of a carrier
of devices and services to be intercepted in accordance with a named person warrant
issued under sections 9A or 11B.
Amendment 10 amends items 13 and 14 of Schedule 1 of the Bill to provide that a
certifying person may notify the Managing Director of a carrier that one or more
telecommunications devices specified in the warrant are to be intercepted.
Amendment 10 also amends paragraphs 16(2)(a) and 16(2)(b) of the TIA Act as a
consequence of Items 3 and 8 of Schedule 1 of the Bill to allow a certifying person to
notify the Managing Director of a carrier that interception of one or more devices
specified in a warrant is no longer required.
Amendments 11 and 12 - Section 42
Section 42 requires that where an agency applies for a telecommunications
interception warrant, each written application must be accompanied by an affidavit
setting out specified information, including the facts and grounds on which the
application is based, the time period that the warrant would be in force and
information to identify each service or device to which, or person to whom, the
application relates.
An interception warrant may be obtained in relation to specific telecommunications
services or specific named persons. Named person warrants can relate to either
telecommunications services being used by a person, or `a particular
telecommunications device'.
Amendments 11 and 12 amend Item 20 of Schedule 1 of the Bill to provide that an
affidavit accompanying an interception warrant application may include one or more
telecommunications devices that are identified in the warrant.
Amendments 13 and 14 - Section 46A
Section 46A sets out the matters that an eligible Judge or nominated AAT member
must be satisfied of in order to issue a named person warrant.
Amendment 13 amends Item 21 of Schedule 1 of the Bill to provide that an
application for a device-based named person warrant may include one or more
telecommunications devices that are identified in the warrant.
Amendment 14 makes consequential amendments to Items 23, 24 and 25 of
Schedule 1 of the Bill as a result of Amendment 13.
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Amendments 15 and 16 - New Section 59A
New Section 59A introduces additional requirements for the chief officer of an
agency to notify the Secretary of the Department of the issue of telecommunications
interception warrants, and of services or devices intercepted under a named person
warrant.
Amendment 15 amends Item 31 of Schedule 1 of the Bill as a result of Amendments
11 and 12.
Amendment 16 amends Item 31 of Schedule 1 as a result of Amendments 13 and 14
that require all devices that are to be intercepted to be specified in the warrant.
Amendments 17, 18 and 19 - Section 60
Section 60 of the TIA Act requires an agency to notify the Managing Director of a
carrier of the issue or revocation of a warrant under Part 2-5.
Amendments 17 and 18 amend Items 35 and 37 of Schedule 1 of the Bill to provide
that a certifying officer may notify the Managing Director of a carrier that one or
more telecommunications devices specified in the warrant are to be intercepted.
Amendment 19 amends paragraph 60(5)(b) of the TIA Act as a consequence of Item
21 of Schedule 1 of the Bill to allow a certifying officer to notify the Managing
Director of a carrier that interception of one or more devices specified in a warrant is
no longer required.
Amendments 20 and 21 - Section 100
Division 2 of Part 2-8 sets out the requirements for the Minister to prepare an annual
report which must contain statistical information about warrants issued under the
TIA Act.
Amendment 20 amends paragraph 100(1)(ec) of the TIA Act to require the Minister's
annual report to provide statistics broken down for each interception agency showing:
· the total number of telecommunications services intercepted under a service-based
named person warrant issued pursuant to subparagraph 46A(1)(d)(i)
· the total number of telecommunications services intercepted under device based-
based named person warrants issued pursuant to subparagraph 46A(1)(d)(ii); and
· the total number of telecommunications devices by means of which
communications were intercepted under device-based named person warrants
issued pursuant to subparagraph 46A(1)(d)(ii).
Amendment 21 amends paragraph 100(2)(ec) of the TIA Act to require the Minister's
annual report to provide the total statistics for:
· the total number of telecommunications services intercepted under a service-based
named person warrant issued pursuant to subparagraph 46A(1)(d)(i)
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· the total number of telecommunications services intercepted under device
based-based named person warrants issued pursuant to subparagraph
46A(1)(d)(ii); and
· the total number of telecommunications devices by means of which
communications were intercepted under device-based named person warrants
issued pursuant to subparagraph 46A(1)(d)(ii).
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