EXPLANATORY STATEMENT

Select Legislative Instrument 2006 No. 116

Issued by the authority of the Attorney-General

Telecommunications (Interception) Amendment Act 2006

Telecommunications (Interception) Act 1979

Telecommunications (Interception) Amendment Regulations 2006 (No. 1)

Proclamation of the Telecommunications (Interception) Amendment Act 2006

The Telecommunications (Interception) Amendment Act 2006 (the amending Act) amended the Telecommunications (Interception) Act 1979 (the Act) to implement certain recommendations of the Report of the Review of the Regulation of Access to Communications concluded by Mr A S Blunn AO including the insertion of a warrant regime for accessing stored communications.  The amending Act also amended the Act to provide for B-Party interception and equipment-based interception.

Item 1 of the table at subsection 2(1) of the amending Act provides that Schedules 1, 2 and 3 to that amending Act commence on a day to be fixed by Proclamation.  If any of these provisions do not commence within a period of 6 months from the day the Act receives Royal Assent, they will commence on the first day after the end of that period.  The Act received Royal Assent on 3 May 2006.

The purpose of the Proclamation is to fix 13 June 2006 as the day on which Schedules 1, 2 and 3 to the amending Act commence. 

Telecommunications (Interception) Amendment Regulations 2006 (No. 1)

Section 108 of the Act provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed, for carrying out or giving effect to the Act.

The purpose of the Regulations is to amend the Telecommunications (Interception) Regulations 1987 (the Principal Regulations) to prescribe a stored communications warrant form and to amend the current prescribed warrant forms to reflect the amendments made to the Act by the amending Act so that they accord with the new provisions of the amending Act.

Schedule 1 to the amending Act amended the Act to create a new stored communications regime.  A stored communication is a communication which is not passing over a telecommunications system and is held on equipment operated by a carrier and cannot be accessed on that equipment, by a person who is not party to the communication, without the assistance of an employee of the carrier.  Under this regime, an enforcement agency can apply for a stored communications warrant when investigating an offence punishable by a maximum period of imprisonment of at least three years, or a pecuniary penalty of at least 180 penalty units.  The Regulations prescribe Form 6 as the stored communications warrant.

Schedule 2 to the amending Act amended the Act to provide the ability for law enforcement and security agencies to obtain telecommunications service warrants in relation to B-Party services. 
B-Party interception is the interception of communications of a person who may not be involved in the commission of an offence, but who will communicate with the person involved in the commission of the offence.  The amending Act amended the Act to provide that where an intercepting agency satisfies an issuing authority that all other practicable methods of identifying the telecommunications service used by the person of interest have been exhausted, or that it is not possible to intercept the telecommunications service used by the person of interest, then the interception agency may intercept the telecommunications service used by another person.  B-Party interception warrants can only be issued to law enforcement agencies for a period of 45 days.  The Regulations amend the prescribed telecommunications service warrant form to incorporate the amendments made to the interception regime to allow for B-Party interception. The Regulations prescribe Form 3 as the telecommunications service warrant and Form 5 as the telecommunications service warrant which authorises entry onto premises.

Schedule 3 to the amending Act amended the Act to provide for the issuing of a named person telecommunications interception warrant on the basis of identification of the particular unique telecommunications device number.  An issuing authority must not authorise interception on the basis of the telecommunications device unless satisfied that the applicant agency has exhausted all other practicable methods of identifying the telecommunications services used or likely to be used by the person of interest, or that interception of those services would not be practicable.  The Regulations amend the prescribed named person warrant form to incorporate the amendments made to the interception regime to allow for equipment-based interception.  The Regulations prescribe Form 4 as the named person warrant.

Schedule 4 to the amending Act amended the Act to remove the distinction between class 1 and class 2 offences.  The amendment Act also renamed these offences into a new category of ‘serious offences’.  The amendment will require the issuing of all interception warrants to have regard to privacy considerations.  Previously, only class 2 interception warrants required an eligible judge or nominated Administrative Appeals Tribunal member to have regard to privacy implications.  The Regulations repeal Forms 1 and 2 contained in the Principal Regulations and amend Forms 3 and 4 to incorporate the removal of the distinction between class 1 and class 2 offences.  The Regulations amend Forms 3, 4 and 5 to provide that an interception warrant is able to be issued for a serious offence.

Regulations 1 to 3 and Schedule 1 will commence on 13 June 2006 and Schedule 2 will commence on 1 July 2006.

Details of the Regulations are as follows:

Regulation 1 names the Regulations.

Regulation 2 provides that regulations 1 to 3 and Schedule 1 will commence on 13 June 2006 and Schedule 2 will commence on 1 July 2006.

Regulation 3 states that the Regulations amend the Principal Regulations.

Schedule 1, Item 1 substitutes the current regulations 1 and 2 to change the name of the Principal Regulations and the definition of Act.  The definition of Act has changed to reflect amendments in the Telecommunications (Interception) Amendment Act 2006 which renamed the Act as the Telecommunications (Interception and Access) Act 1979. Accordingly, upon commencement, the name of the Principal Regulations will be the Telecommunications (Interception and Access) Regulations 1987.

Schedule 1, Item 2 prescribes the form that is to be used when applying for a stored communications warrant.

Schedule 1, Item 3 amends the Schedule 3 heading contained in the Principal Regulations to clearly indicate that Schedule 3 to the new Regulations contains prescribed Forms 3 to 6 which are to be used for applications for stored communications warrants, telecommunications service interception warrants, named person warrants and entry on to premises and interception warrants.

Schedule 1, Item 4 inserts Form 6 as the prescribed form that is to be used by law and enforcement agencies to apply for a stored communications warrant under section 116 of the Act.  Paragraph 1 of warrant Form 6 provides that an issuing authority must be satisfied before issuing a stored communications warrant:

• that the administrative requirements set out in sections 110 to 115 of the Act have been complied with;
• where the application was made by telephone, that the urgency of the situation justified a telephone application;
• that there are reasonable grounds for suspecting that a particular carrier holds stored communications for whom the identified person is the sender or the intended recipient;
• that information that could be obtained from those stored communications would be likely to assist in the investigation of a serious contravention; and
• having regard to the impact on privacy, the gravity of the serious contravention, the likely value of the information that could be obtained and a comparison of other methods of investigation, that a stored communications warrant should be issued.

Clause 2 provides that the chief officer of the applicant agency may authorise certain officers of the agency, or another agency, to exercise the authority conferred by the warrant.

Clause 3 provides for the duration of a stored communications warrant.  Where a warrant relates to telecommunications services operated by the same carrier, a stored communications warrant is in force when it is first issued and remains in force until it is first executed, or five days after the day if which it was issued, whichever occurs first.  Where a warrant relates to communications held by different carriers, the warrant remains in force in relation to each service until it is executed by the carrier which holds the relevant stored communication and up to a maximum of 5 days from when the warrant was issued. 

Clauses 4 and 5 enable an issuing authority to place conditions or restrictions relating to accessing stored communications under the warrant.

Schedule 2, Item 1 amends regulation 3 to incorporate the removal of the distinction between class 1 and class 2 offences by removing references to sections 45 and 45A and prescribed Forms 1 and Forms 2 from the list of warrants authorising agencies to intercept telecommunications.

Schedule 2, Item 2 removes prescribed Forms 1 and 2 from Schedule 3 to the Principal Regulations.

Schedule 2, Item 3 amends prescribed Forms 3 to 5 to reflect the amendments to the Act made by Schedules 2, 3 and 4 to the amending Act.  Form 3 is prescribed for telecommunications service warrants and incorporates the changes to section 46 made by Schedule 2 to the amending Act in relation to the matters that an eligible judge or nominated Administrative Appeals Tribunal  member must be satisfied with before they can issue a B-Party warrant.  Form 4 is prescribed for named person warrants and incorporates the amendments to section 46A of the Act which relate to equipment-based interception in the amending Act.  Form 5 is prescribed as the form to be used for obtaining a warrant that authorises entry onto premises and interception of communications.  New Forms 3, 4 and 5 all incorporate amendments to the Act which remove the distinction between class 1 and class 2 offences and redefine them as ‘serious offences’ and provide additional privacy tests that an eligible judge or nominated Administrative Appeals Tribunal member must consider before issuing any interception warrant as required under sections 46 and 46A of the Act.

Schedule 2, Item 3, Form 3 is the prescribed form for the issuing of telecommunications service warrants under section 46 of the Act.  Clause 1 provides that an eligible judge or nominated Administrative Appeals Tribunal member must be satisfied before issuing a telecommunications service warrant:

• that the administrative requirements set out in Division 3 of Part 2-5 of the Act have been complied with;
• where the application was made by telephone, that the urgency of the situation justified a telephone application;
• that there are reasonable grounds for suspecting that a particular person is using, or is likely to use, a particular service;
• that information that could be obtained would be likely to assist in the investigation of a serious offence;
• having regard to the impact on privacy, the gravity of the serious contravention, the likely value of the information that could be obtained and a comparison of other methods of investigation, that an interception warrant should be issued.

Where the applicant agency has applied for a warrant to intercept B-Party communications under subparagraph 46(1)(d)(ii) of the Act, the eligible judge or nominated Administrative Appeals Tribunal member must be satisfied:

• that the applicant agency has exhausted all other practicable methods of identifying the services used, or likely to be used, by the person involved in the serious offence being investigated; and
• that interception of communications made by the person suspected of a serious offence would not otherwise be possible.

Clause 2 provides that the chief officer of the applicant agency may authorise certain officers of the agency, or another agency, to exercise the authority conferred by the warrant.

Clause 3 provides that a warrant issued under section 46 of the Act to an agency other than the Australian Federal Police does not come into force until it is received by or on behalf of the Commissioner of Police, or in the case of a telephone application, until notification of the warrant is received by or on behalf of the Commissioner of Police.  A warrant issued to the Australian Federal Police comes into force when it is issued. 

Where such a warrant is issued under section 46, it remains valid for a period of not more than 90 days, except where the warrant is issued to intercept the communications of a B-Party under subparagraph 46(1)(d)(ii) where it would not be valid for a period greater than 45 days.

Clauses 4 and 5 allow an eligible judge or nominated Administrative Appeals Tribunal member to place conditions or restrictions on the use of the warrant.

Schedule 2, Item 3, Form 4 is the prescribed form for the issuing of named person warrants under section 46A of the Act.  When issued, the warrant would authorise interception of communications made to or from any telecommunications service that a particular person is using or authorises the interception of communications made to and from a telecommunications device such as a mobile phone.  Clause 1 of the prescribed warrant Form provides that an eligible judge or nominated Administrative Appeals Tribunal member must be satisfied before issuing a named person warrant:

• that the administrative requirements set out in Division 3 of Part VI of the Act has been complied with;
• where the application was made by telephone, that the urgency of the situation justified a telephone application;
• that there are reasonable grounds for suspecting that a particular person is using, or is likely to use, more than one telecommunications service;
• that information that could be obtained would be likely to assist in the investigation of a serious offence;
• having regard to the impact on privacy, the gravity of the serious contravention, the likely value of the information that could be obtained and a comparison of other methods of investigation, that a named person warrant should be issued.

Clause 2 provides that the chief officer of the applicant agency may authorise certain officers of the agency, or another agency, to exercise the authority conferred by the warrant.

Clause 3 provides that a warrant issued under section 46A of the Act to an agency other than the Australian Federal Police does not come into force until it is received by or on behalf of the Commissioner of Police, or in the case of a telephone application, notification of the warrant is received by or on behalf of the Commissioner of Police.  A warrant issued to the Australian Federal Police comes into force when it is issued. 

Where a warrant is issued under section 46A, it remains valid for a period of not more than 90 days.

Clauses 4 and 5 enable an eligible judge or nominated Administrative Appeals Tribunal member to place conditions or restrictions on the use of the warrant.

Schedule 2, Item 3, Form 5 has been amended to reflect the removal of the distinction between class 1 and class 2 offences as provided for in Schedule 4 of the amending Act.  Upon commencement, an interception warrant may now be issued in relation to serious offences.

Clause 1 provides that an eligible judge or nominated Administrative Appeals Tribunal member may authorise entry onto a particular premises during certain hours to install, maintain or recover equipment or a line used in the interception of communications.

Clause 1 makes it clear that an eligible judge or nominated Administrative Appeals Tribunal member may only issue a warrant where satisfied:

• that subsection 48(2) of the Act has been complied with;
• that a telecommunications service warrant could be issued under section 46 of the Act;
• that the administrative requirements set out in Division 3 of Part 2-5 of the Act has been complied with;
• that information that could be obtained would be likely to assist in the investigation of a serious offence;
• that it would be impracticable or inappropriate to intercept communications under a warrant in respect of the service otherwise than by the use of equipment or a line installed on those premises for technical reasons or because the security of the investigation may be jeopardised.

Clause 2 provides that the chief officer of the applicant agency may authorise certain officers of the agency, or another agency, to exercise the authority conferred by the warrant

Clause 3 provides that a warrant comes into force when it is issued and remains in force for a period of not more than 90 days, except where the warrant is issued to intercept the communications of a B-Party under subparagraph 46(1)(d)(ii) where it would not be valid for a period greater than 45 days.

Clauses 4 and 5 allow an eligible judge or nominated Administrative Appeals Tribunal member to place conditions or restrictions on the use of the warrant.