EXPLANATORY STATEMENT

 

Select Legislative Instrument 2008 No. 105

 

Issued by the Authority of the Attorney-General

 

Telecommunications (Interception and Access) Act 1979

Telecommunications (Interception and Access) Amendment Regulations 2008

(No. 1)

 

The Telecommunications (Interception and Access) Act 1979 (the Act) contains exceptions to the general prohibition on the disclosure of telecommunications information which is contained in the Telecommunications Act 1997. These exceptions allow a telecommunications carrier or carriage service provider to disclose telecommunications data to an enforcement agency for the enforcement of the criminal law, a law imposing a pecuniary penalty or for the protection of the public revenue.

 

Telecommunications data is information about a telecommunication such as the date, time, or duration of a phone call, but does not include the content or substance of the communication.

 

The Act distinguishes between access to historical telecommunications data (data which is already in existence at the time of the request) and prospective data (data that is collected as it is created and forwarded to the agency in near real time). Only criminal law enforcement agencies as defined in section 5 of the Act are permitted to access prospective data.

 

The Australian Customs Service (Customs) is a Commonwealth agency established by the Customs Administration Act 1985 and is responsible for the enforcement of the criminal law including serious criminal offences with penalties of up to 25 years imprisonment.

 

This Regulation prescribes Customs as a criminal law enforcement agency pursuant to paragraph (5)(1)(k) thereby allowing Customs to authorise the disclosure of prospective telecommunications data.

 

All authorisations are subject to the requirements of the Telecommunications (Interception and Access) (Requirements for Authorisations, Notifications and Revocations) Determination 2007. This Regulation does not alter Customs’ powers relating to telecommunications interception or stored communications. Consultation was undertaken with Customs regarding this Regulation.

 

Section 300 of the Act provides that the Governor‑General may make regulations, not inconsistent with the Act, prescribing matters required or permitted by the Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to this Act. Paragraph 5(1)(k) of the Act permits the prescribing by regulation of a Commonwealth authority as a criminal law‑enforcement agency.

 

The accompanying Regulation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.