House of Representatives

Cybercrime Legislation Amendment Bill 2011

Explanatory Memorandum

(Circulated by authority of the Attorney-General, the Honourable Robert McClelland MP)

SCHEDULE 1 - PRESERVATION REGIME FOR STORED COMMUNICATIONS

Telecommunications Act 1997

Telecommunications (Interception and Access) Act 1979

Schedule 1 amends the Telecommunications (Interception and Access) Act 1979 (the TIA Act) and the Telecommunications Act 1997 to oblige Carriers and Carriage Service Providers (C/CSPs) to preserve targeted stored communications when requested by certain domestic agencies or when requested by Australian Federal Police on behalf of certain foreign countries.

Schedule 1 implements requirements of the Council of Europe Convention on Cybercrime (the Convention). Article 16 requires Parties to establish powers enabling domestic agencies to obtain the preservation of stored computer data (stored communications, including traffic data) for up to 90 days, particularly where there are grounds to believe that the data is particularly vulnerable to loss or modification. The purpose of the 90 day preservation period is to maintain the integrity of that computer data for a period of time as long as necessary to enable the competent authorities to seek its disclosure. A Party may provide for such an order to be subsequently renewed.

Article 16 also requires that each party adopt such measures as necessary to oblige the person who is preserving the data to keep confidential the undertaking of such procedures.

Article 29 requires Parties to establish powers enabling a domestic agency to be able to obtain the preservation of stored computer data (including traffic data) at the request of other parties to the Convention. The Convention specifies necessary components of an international preservation request, including that the party seeking preservation must intend to submit a request for mutual assistance for the search or similar access, seizure or similar securing, or disclosure of the data.

Article 29 also specifies that preservation should be for a period not less than 60 days and, following the receipt of such a mutual assistance request, the data shall continue to be preserved pending a decision on that request.

Under the Convention, the obligation to preserve information does not automatically require the release of preserved information. Rather, one Party's law enforcement agencies can request that another Party preserve the information in anticipation of obtaining a lawful authority to access the information.

Schedule 1 implements these requirements by establishing two classes of domestic preservation notices which allow for domestic agencies to preserve certain stored communications that a carrier holds until the communications can be accessed under a warrant. This prevents the communications from being destroyed before a warrant is obtained.

Under this system, certain agencies can give a preservation notice to a carrier requiring the carrier to preserve all stored communications that the carrier holds that relate to the person or telecommunications service specified in the notice. The carrier will breach its obligations under section 313 of the Telecommunications Act 1997 if it does not comply with the notice.

There are three types of preservation notices:

·
historic domestic preservation notices (which preserve communications held by the carrier on the day the notice is received that might assist the Organisation in carrying out its function of obtaining intelligence relating to security or a contravention of certain Australian laws for up to 90 days)
·
ongoing domestic preservation notices (which preserve communications held by the carrier during a 29 day period after the notice is received that might assist the Organisation in carrying out its function of obtaining intelligence relating to security or a contravention of certain Australian laws for up to 90 days), and
·
foreign preservation notices (which cover stored communications held by the carrier on the day the notice is received that might relate to a contravention of certain foreign laws).

Division 2 deals with domestic preservation notices. In the case of historic domestic preservation notices (which cover stored communications held by the carrier during the rest of the day the notice is received), an issuing agency (which is an enforcement agency or the Organisation) can give a historic domestic preservation notice if the relevant conditions in new section 107J are satisfied, including that the agency intends to apply for a warrant under the TIA Act to access the preserved stored communications. There are also certain grounds in new section 107L on which the preservation notice must be revoked.

In the case of ongoing domestic preservation notices (which cover stored communications held by the carrier in the period starting when the notice is received and ending 29 days later), an issuing agency (which is restricted to interception agencies or the Organisation) can give an ongoing domestic preservation notice if the relevant conditions in new section 107J are satisfied, including that the agency intends to apply for a warrant under the TIA Act to access the preserved stored communications. There are also certain grounds in new section 107L on which the preservation notice must be revoked.

Division 3 deals with foreign preservation notices. Only the Australian Federal Police can give a foreign preservation notice to a carrier and it can only do so if a foreign country has made a request for the preservation in accordance with new section 107P. There are also certain grounds on which the notice must be revoked.

Division 4 has miscellaneous provisions relating to all types of preservation notices (such as provisions about the giving of evidentiary certificates by carriers and issuing agencies).

A domestic preservation regime will assist ASIO and law enforcement agencies to address timing issues caused by C/CSPs retaining information for inconsistent periods of time and issues caused by delays in obtaining warrants if an issuing authority is unavailable. Existing time pressures mean that, in some circumstances, stored communications are unavailable when requested under a warrant because the C/CSP has deleted the information. Enabling the more expeditious preservation will also assist in information being available for foreign investigative purposes subject to the mutual assistance process. The distinction between historic and ongoing notices will allow agencies to select a tool that is suitable for particular investigations. No communications will be disclosed unless a warrant is subsequently issued which authorises the disclosure of those communications.

Telecommunications Act 1997

Item 1 - Paragraph 313(7)(c)

Item 1 inserts Paragraph 313(7)(c) into the Telecommunications Act to oblige C/CSPs to comply with both the domestic and international preservation regimes contained in the TIA Act. The amendment makes compliance with preservation notices a condition of a carrier licence. For further information about carrier licence conditions see section 61 and Schedule 1 of the Telecommunications Act.

Telecommunications (Interception and Access) Act 1979

Item 2 - Subsection 5(1) definition of certifying official

Item 2 inserts a definition of certifying official for use in the context of the domestic preservation regime. The definition of certifying official combines a certifying officer of an agency and a certifying person of the Organisation. The purpose of this new definition is to simplify the drafting of the preservation notice regime.

Items 3 and 4 - Subsection 5(1) definitions of domestic preservation notice and foreign preservation notice

Items 3 and 4 insert references to the definitions of domestic preservation notice and foreign preservation notice into the definitions section of the TIA Act.

Item 5 - Subsection 5(1) definition of historic domestic preservation notice

Item 5 inserts a definition of historic domestic preservation notice into the definitions section of the TIA Act. The definition refers to subparagraph 107H(1)(b)(i) which details the operation of historic domestic preservation notices.

A historic domestic preservation notice will require a carrier to preserve all stored communications it holds on the day it receives the notice (that relate to a relevant person and/or telecommunications service(s)), and receives up until the end of that day. A carrier may hold on any particular day stored communications that it received on its systems several days or weeks earlier. Provided the carrier still holds those stored communications on the day on which the historic domestic preservation notice is issued to it, those stored communications must be preserved, in addition to any further stored communications received during the rest of that day.

Item 6 - Subsection 5(1) paragraph (a) of the definition of interception agency

Item 6 amends paragraph 5(1)(a) of the definition of interception agency to include a reference to new Part 3-1A. The change ensures that interception agency has a specific meaning in new Part 3-1A.

Item 7 - subsection 5(1) new paragraph (ba) of the definition of interception agency.

Item 7 inserts a new definition of interception agency for the purpose of new Part 3-1A. For the purposes of Part 3-1A an enforcement agency is a Commonwealth agency or an eligible authority of a State in relation to which a declaration under section 34 is in force.

Item 8 - Subsection 5(1) definition of issuing agency

Item 8 inserts a definition of issuing agency for use in the context of the preservation regime. The issuing agency is whichever agency issues a particular notice and may be an enforcement agency, an interception agency or the Organisation. The purpose of this new definition is to simplify the drafting of the preservation notice regimes.

Item 9 - Subsection 5(1) definition of ongoing domestic preservation notice

Item 9 inserts a definition of ongoing domestic preservation notice into the definitions section of the TIA Act. The definitions refers to subparagraph 107H(1)(b)(ii) which details the operation of ongoing domestic preservation notices.

An ongoing domestic preservation notice will require a carrier to preserve all stored communications it holds on the day it receives the notice (that relate to a relevant person and/or telecommunications service(s)), and receives up until the end of the 29th day after the day the carrier receives the notice. A carrier may hold on any particular day stored communications that it received on its systems several days or weeks earlier. Provided the carrier still holds those stored communications on the day on which the ongoing domestic preservation notice is issued to it, those stored communications must be preserved, in addition to any further stored communications received until the end of the 29th day after the carrier receives the notice.

Item 10 - Subsection 5(1) definition of preservation notice

Item 10 inserts a definition of preservation notice . Preservation notice means a domestic preservation notice or a foreign preservation notice. The purpose of this new definition is to simplify the drafting of the preservation notice regimes.

Item 11 - Subsection 5(1) definition of preservation notice information

Item 11 inserts a reference to the definition of preservation notice information contained in new section 6EAA of the TIA Act.

Item 12 - Subsection 5(1) definition of preserve

Item 12 inserts a definition of preserve in relation to stored communications for the purpose of the preservation regime. Preserve means to maintain the integrity of the relevant communication, or a copy of the communication. The phrase 'maintain the integrity' includes ensuring that the relevant information or data is not edited, deleted or otherwise changed. The distinction between the original and a copy is intended to allow C/CSPs some technological flexibility in how they comply with the requirement. For example, to permit C/CSPs to make a copy of the original and maintain the integrity of the copy and thereby comply with the preservation requirement even if the original is deleted.

Item 13 - Subsection 5(1) definition of relates

Item 13 inserts a definition of relates which operates differently when the communications relate to a person to when the communications relate to a service.

Stored communications relate to a person if the person made or received the communication. Stored communications relate to a particular telecommunications service if the communications has passed over a telecommunications system by way of that service.

Item 14 - Subsection 5(1) definition of relevant period

Item 14 inserts a definition of relevant period which operates differently for historic domestic preservation notices and ongoing domestic preservation notices. For historic domestic preservation notices, relevant period means a period that starts when the carrier receives the notice and ends at the end of that day. For ongoing domestic preservation notices, relevant period means a period that starts when the notice is received and ends at the end of the day 29 days later. The 29 days does not include the day on which the notice was received.

Item 15 - Subsection 5(1) definition of working day

Item 15 inserts a definition of working day . Working day means a week day which is not a public holiday in any State or Territory. This definition is for use in connection with new section 107R in relation to the issuing of revocations for foreign preservation notices. A working day is meant to be a day in which both the AFP and the relevant C/CSP located in any State or Territory is at work and in a position to action revocations appropriately.

Item 16 - Section 6EAA definition of preservation notice information

Item 16 creates the full definition of preservation notice information , referred to in Item 7. The definition is intended to broadly cover anything which could imply the existence of a preservation notice. A broad definition is required to ensure that confidentiality of any information which could imply the existence of a preservation notice to avoid undermining the need to covertly access stored communications. The definition is intended to be consistent with the definition of interception warrant information and stored communications warrant information.

Item 17 - Chapter 3 (heading)

Item 17 substitutes a new heading for Chapter 3. The new heading adds the concept of preservation to Chapter 3.

Item 18 - Part 3-1A Preserving stored communications

Item 18 creates new Part 3-1A in relation to preserving stored communications.

Division 1 - Outline of this Part

107G Outline of this Part

Creates an outline for new Part 3-1A.

Division 2 - Domestic preservation notices

107H When a domestic preservation notice can be given

New section 107H establishes the requirements of a domestic preservation notice - specifically that the C/CSP must preserve all communications that relate to the specified person, or all the communications that relate to the specified service(s), and which the C/CSP holds at any time during the relevant period. The relevant period is different for historic and ongoing notices. 107H(2) refers to the conditions in 107J in which each type of domestic preservation notice can be issued.

107H(3) prevents an agency from listing multiple people on a single notice. Paragraph 107H(3)(c) intends to allow agencies to assist a carrier by specifying services which the agency believes relate to the person. When an agency is investigating a person with a common name, the paragraph will allow the agency to provide extra particulars and prevent confusion. An agency is not prevented from including services on a person notice to assist in identifying the relevant stored communications.

107J Condition for giving a domestic preservation notice

New section 107J establishes the conditions for when an issuing agency can issue each type of domestic preservation notice.

For historic notices, where the issuing agency is an enforcement agency, the agency must be investigating a serious contravention. The agency must also consider that there are reasonable grounds for suspecting that there are, or might be during the relevant period, stored communications that might assist in connection with the investigation; and that there are reasonable grounds for suspecting that there are stored communications which relate to the person or service covered by the notice.

These conditions reflect operational realities, including the possibility that an agency is aware stored communications relating to a particular person exist, but not which C/CSP has those communications. The section intends to provide agencies broader scope in the preservation of information than in seeking the actual disclosure of information.

The agency must also intend to access the communications with a Part 2-5 warrant or a stored communications warrant if, at a later time, the agency considers such a warrant would be likely to assist in connection with the investigation. The requirement connects the preservation regime with the mechanisms in the TIA Act for gaining lawful access to the communications.

For historic notices, where the issuing authority is the Organisation, the Organisation must consider that there are reasonable grounds for suspecting that there are, or might be during the relevant period, stored communications which might assist the Organisation in carrying out its function of obtaining intelligence relating to security; and that there are reasonable grounds for suspecting that there are stored communications which relate to the person or service covered by the notice. Additionally, the Organisation must intend to access the communications with a Part 2-2 warrant.

For ongoing notices, where the issuing agency is an interception agency, the agency must be investigating a serious contravention. The agency must also consider that there are reasonable grounds for suspecting that there are, or might be during the relevant period, stored communications that might assist in connection with the investigation; and that there are reasonable grounds for suspecting that there are stored communications which relate to the person or service covered by the notice. These conditions reflect operational realities, including the possibility that an agency is aware stored communications relating to a particular person exist, but not which C/CSP has those communications. The section intends to provide agencies broader scope in the preservation of information than in seeking the actual disclosure of information because lower levels of certainty may exist early in investigations.

The agency must also intend to access the communications with a Part 2-5 warrant or a stored communications warrant if, at a later time, the agency considers such a warrant would be likely to assist in connection with the investigation. The requirement connects the preservation regime with the mechanisms in the TIA Act for gaining lawful access to the communications.

The agency cannot issue another ongoing domestic preservation notice if that agency already has an ongoing domestic preservation notice in force for that person or telecommunications service(s). The reference to 'same person' means an actual person and does not intend to impede an investigation where one target may be using multiple pseudonyms. The phrase 'in force' refers new section 107K which specifies that a carrier a notice is 'in force' from when the carrier receives it until up to 90 days later.

For ongoing notices, where the issuing authority is the Organisation, the Organisation must consider that there are reasonable grounds for suspecting that there are, or might be during the relevant period, stored communications which might assist the Organisation in carrying out its function of obtaining intelligence relating to security. Security is defined in section 4 of the Australian Security Intelligence Organisation Act 1979 as the protection of, and of the people of, the Commonwealth and the several States and Territories from espionage, sabotage, politically motivated violence, promotion of communal violence, attacks on Australia's defence system or acts of foreign interference whether directed from, or committed within, Australia or not, and the protection of Australia's territorial and border integrity from serious threats and the carrying out of Australia's responsibilities to any foreign country in relation to a matter mentioned above.

For an ongoing notice, the Director-General of Security must also consider there are reasonable grounds for suspecting that there are stored communications which relate to the person or service covered by the notice. Additionally, the Organisation must intend to access the communications with a Part 2-2 warrant.

The Organisation cannot issue another ongoing domestic preservation notice if that agency already has an ongoing domestic preservation notice in force for that person or telecommunications service. The reference to 'same person' means an actual person and does not intend to impede an investigation where one target may be using multiple pseudonyms.

The phrase 'in force' refers new section 107K which specifies that a carrier a notice is 'in force' from when the carrier receives it until up to 90 days later.

107K When a domestic preservation notice is in force

New section 107K identifies the period for which a preservation notice is in force. A notice comes into force when the carrier receives the notice. The carrier must maintain the integrity of the preserved information for the period in which the notice is in force.

A notice ceases to be in force, meaning that the C/CSP can delete the preserved information, at the earliest of a 90 day period, upon receiving a revocation, or five days after the issuing of either a Part 2-2 warrant or a Part 2-5 warrant which authorises the disclosure of the information. The TIA Act provides that stored communications warrants are in force for five days before they expire.

107L Revoking a domestic preservation notice

New section 107L provides the circumstances for the revocation of domestic preservation notices. The first circumstance is where an issuing agency decides, for whatever reason, to revoke the preservation notice. This is intended to be used in circumstances where an agency decides, for whatever reason, that the communications no longer need to be preserved.

The second circumstance is where one of the requirements in new section 107J ceases to apply. This is intended to apply where the progress of an investigation changes the views of the agency about the need to access communications. For instance, if a decision is made that a particular person whose communications were preserved is no longer a suspect and do not relate to the investigation, the agency should revoke the notice. Additionally, if an issuing agency decides for whatever reason that it no will no longer obtain a warrant under the TIA Act, even if the agency still considers that the communication would be likely to assist, the preservation notice must be revoked.

107M The persons who act on the issuing agency's behalf

New section 107M identifies persons who can issue or revoke a domestic preservation notice.

In the case of an enforcement agency using an historic domestic preservation notice, only a person authorised to apply for a stored communications warrant may issue or revoke the notice. This is because new paragraph 107J(1)(c) requires that a preservation notice only be issued if there is an intention to access the communications with a stored communications warrant or an interception warrant. Ensuring an overlap between the persons authorised to apply for a stored communications warrant and persons authorised to issue a preservation notice ensures that intention in new paragraph 107J(1)(c) can be properly formed when the preservation notice is issued.

In the case of the Organisation using an historic domestic preservation notice, only a certifying person may issue or revoke the notice.

In the case of an enforcement agency using an ongoing domestic preservation notice, only an authorised officer of the agency may issue or revoke the notice. This is because new paragraph 107J(1)(c) requires that a preservation notice only be issued if there is an intention to access the communications with a stored communications warrant or an interception warrant. Ensuring an overlap between the persons authorised to apply for a stored communications warrant and persons authorised to issue a preservation notice ensures that intention in new paragraph 107J(1)(c) can be properly formed when the preservation notice is issued.

In the case of the Organisation using an ongoing domestic preservation notice, only the Director-General of Security may issue the notice. An ongoing domestic preservation notice can be revoked in the same way as a historic domestic preservation notice - by a certifying person.

Division 3 - Foreign preservation notices

107N When a foreign preservation notice can be given

New section 107N(1) provides that, when the Australian Federal Police (AFP) receives a request to preserve stored communications that is compliant with the conditions set out in new section 107P, it must issue a foreign preservation notice in relation to those stored communications. A foreign preservation notice requires the preservation of all stored communications that the carrier holds at any time from receiving the notice until the end of that day which relate to the specified person or telecommunications service.

107N(2) prevents the AFP from listing multiple people on a single notice. Paragraph 107N(2)(c) intends to allow the AFP to assist a carrier by specifying services which the AFP believes relate to the person. For investigations relating to a person with a common name, the paragraph will allow the AFP to provide extra particulars and prevent confusion.

Article 27 of the Cybercrime Convention includes circumstances in which the receiving party could elect not to issue a preservation notice in response to compliant requests. However, new section 107N requires the AFP to issue notices in response to all compliant requests. The intention is that the content of the communication will only be disclosed to foreign jurisdictions through the mutual assistance process which has inbuilt safeguards functionally identical to the grounds for refusing preservation requests. Because of the urgent nature of preservation, it is best to action preservation requests expeditiously and leave complicated assessments to the full mutual assistance process.

107P Condition for giving a foreign preservation notice

New section 107P identifies the conditions on which a foreign country may request the AFP to preserved stored communications. These conditions include that the country intends to submit a formal mutual assistance request, that the communications relate to an identified person or telecommunications service and are relevant to a serious foreign contravention.

New subsection 107P(2) lists the particulars that a foreign country must include in a preservation request to the AFP. The requirement to be in writing intends to include facsimiles, e-mails and other similar means of communications. New subsection 107P(2) requires that the request specify the reasons why the stored communications need to be preserved. The specification should explain the connection between the communications and the relevant serious foreign contravention and explain why the communications may be important to the investigation.

107Q When a foreign preservation notice is in force

New section 107Q provides that a foreign preservation notice comes into force when the carrier receives the notice and ceases to be in force when a revocation under new section 107R is received or a stored communications warrant authorising the disclosure of the communications ceases to be in force. The TIA Act provides that stored communications warrants are in force for five days before they expire.

The domestic preservation notice provision contained in new section 107K has a default end date of 90 days. While new section 107K has a default end date of 90 days, new section 107Q contains no default period. This is because the Convention ties the end of preservation to steps within the mutual assistance process. As C/CSPs are not in a position to be aware of these process, section 107R places the burden on the AFP to inform the C/CSP of when the notice ceases to be in force.

107R Revoking a foreign preservation notice

New section 107R provides for three circumstances in which the AFP must revoke a foreign preservation notice.

The first circumstance is that 180 days have elapsed since the carrier was given the notice and the foreign country did not make a formal mutual assistance request for access to the communications. The purpose of this provision is to give carriers certainty that they will not be preserving stored communications indefinitely for investigations which have ceased.

The second circumstance is where the relevant foreign country makes a mutual assistance request which the Attorney-General refuses. The third circumstance is where the foreign country withdraws the mutual assistance request.

In all circumstances the AFP must revoke the preservation notice by the end of the third working day after the end of the relevant period. The revocation must be in writing.

107S The persons who act on the AFP's behalf

New section 107S requires that foreign preservation notices must be given or revoked only by an authorised officer of the AFP. This section is intended to be consistent with new section 107M, but applicable in the more specific instance of foreign preservation notices.

Division 4 - Provisions relating to preservation notices

New Division 4 creates an evidentiary certificate regime for preservation notices consistent with the existing evidentiary certificate regime for a carrier with respect to the execution of warrants, see current sections 18, 129 and 130.

107T Evidentiary certificates relating to actions by carriers

New section 107T provides that the Managing Director, Secretary of a carrier or an authorised employee of a carrier may issue a written certificate setting out facts which detail the acts done by employees of the carrier to comply with a preservation notice. This may include, for instance, that an employee of the carrier made a copy of the communications covered by the notice and moved that copy to a different system where it would be preserved.

Written evidentiary certificates are intended to be conclusive proof of the matters stated in the document. This is intended to ensure that employees of the carrier are not required to testify in each proceeding which relies on evidence obtained under a stored communications warrant which was previously subject to preservation, simply to explain the technical aspects of the preservation.

107U Evidentiary certificates relating to actions by issuing agencies

New section 107U provides that a certifying official of an issuing agency can create an evidentiary certificate setting out facts about actions done by an officer or staff member of the agency in connection with the preservation. This may include, for instance, matters relating to the issuing of a notice and giving it to a carrier.

The written certificate is taken to be, in an exempt proceeding, as prima facie evidence of the matters stated in the document. This ensures that employees of the agency are not required to testify in each proceeding which relies on evidence obtained under a stored communications warrant which was previously subject to preservation, simply to explain that the information was lawfully obtained.

107V Certified copies of preservation notices

New section 107V allows for the creation of certified copies of preservation notices. Such copies are to be treated the same as the original. The purpose of this provision is to simplify document management for issuing agencies.

107W How notices are to be given to carriers

New section 107W obliges agencies to give preservation notices and revocations to the authorised representative of the carrier. This includes sending the notices or revocations to the appropriate contact point via e-mail. This section ensures that notices are given to the appropriate people within a carrier's organisation. This is because carriers are potentially large bodies with offices in multiple jurisdictions.

Item 19 - Subparagraph 108(2)(f)(ia)

Item 19 inserts subparagraph 108(2)(f)(ia) to ensure that persons lawfully engaging in duties relating to the installation, connection or maintenance of equipment for accessing stored communications pursuant to preservation notices are not committing an offence under the TIA Act.

Item 20 - Division 1 of Part 3-4 (heading)

Item 20 amends the Division heading by adding 'etc.' to include dealing with preservation notice information.

Item 21 - Subparagraph 133(1)(b)(ii)

Item 21 inserts subparagraph 133(1)(b)(ii) to make the communication, use, recording or giving in evidence of preservation notice information an offence. This is pursuant to Article 16(3) of the Cybercrime Convention.

Item 22 - Section 134

Item 22 repeals current section 134 and replaces it with a similar section which includes the concept of preservation notice information in addition to the current concept of stored communications warrant information. Preservation notice information is likely to disclose the same kinds of confidential information as warrant information and maintaining the confidentiality of the information is a requirement of Article 16(3) of the Cybercrime Convention.

Item 23 - After subsection 135(4)

Item 23 inserts new subsections 135(4A) and 135(4B) to create permitted circumstances for dealing with preservation notice information by employees of carriers. These new subsections are intended to be consistent with existing subsections 135(5) and 135(6) which relate to stored communications warrant information. The changes are necessary to maintain the confidentiality of preservation notice information as required by Article 16(3) of the Cybercrime Convention.

Items - 24 and 25 After paragraphs 136(1)(a), 137(1)(a), 138(1)(a), 138(2)(a) and 139(1)(a) and Subsection 146(2)

Items 24 and 25 insert the concept of preservation notices in appropriate paragraphs in sections 136, 137, 138 and 139 and 146. These insertions allow for the dealing and communication of preservation notice information in the same circumstances as dealing and communication is permitted for stored communications warrant information. This includes the giving of evidence in civil proceedings. These changes ensure preservation notice information is treated consistently with stored communication warrant information and are necessary to comply with Article 16(3) of the Cybercrime Convention.

Items - 26 and 27 Part 3-5 (heading) and Division 1 of Part 3-5 (heading)

Items 26 and 27 insert the concept of preservation into the headings of Chapter 3, Part 3-5 and Chapter 3, Part 3-5 Division 1. The Part currently only relates to stored communications access records, such as the issuing or revocation of stored communications warrants. This Bill expands the Division to include records regarding preservation so that the preservation and revocation activities are also subject to appropriate record keeping and inspection requirements.

Item 28 - Section 150A

Item 28 inserts new section 150A to require the chief officer of enforcement agencies to ensure preservation notices, revocations and evidentiary certificates are kept in each agency's records. The new section gives enforcement agencies flexibility in how they keep these records, such as maintaining a file or folder for each type of document.

Item 29 - Division 1 of Part 3-5 (heading)

Item 29 inserts the concept of preservation into the heading of Division 2 of Part 3-5. This change is to reflect that preservation notices are to be subject to inspection by the Ombudsman.

Items 30 and 31 - Paragraph 152(a) and Subsection 153(3)

Items 30 and 31 insert a new reference to new section 150A into existing sections 152 and 153. This change is to allow the Ombudsman to confirm that agencies are keeping records as required by new section 150A, and include the results of inspections in the Ombudsman's report.

Item 32 - Part 3-5 Division 3 Inspection of preservation notice records by Inspector-General of Intelligence and Security

Item 32 creates new Division 3 and new section 158A. New section 158A refers to provisions in the Inspector-General of Intelligence and Security Act 1986 which give the Inspector-General of Intelligence and Security the function of inquiring into and conducting inspections with regards to the preservation notice scheme in the TIA Act.

The purpose of the section is to highlight the Inspector-General of Intelligence and Security's functions. The section does not intend to change or alter any functions, obligations or powers expressed in the Inspector-General of Intelligence and Security Act 1986 .

Item 33 - Section 161A

Item 33 inserts new section 161A into the TIA Act to expand the annual reporting obligations for enforcement agencies in Division 2 of Part 3-6 to include statistics on the number of preservation and revocation notices issued. In the case of the AFP, the annual reporting obligation is also expanded to include statistics about foreign preservation notices and revocations. The annual reporting obligations are an important element of the oversight regime contained in the TIA Act.


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