House of Representatives

Cybercrime Legislation Amendment Bill 2011

Explanatory Memorandum

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

SCHEDULE 2 - AMENDMENTS RELATING TO MUTUAL ASSISTANCE

Mutual Assistance in Criminal Matters Act 1987

Telecommunications (Interception and Access) Act 1979

Schedule 2 of the Bill will amend the Mutual Assistance in Criminal Matters Act 1987 (MA Act), the Telecommunications (Interception and Access) Act 1979 (TIA Act) and Telecommunications Act 1997 to implement Australia's international cooperation obligations under the Convention. Australia is already compliant with the majority of international cooperation obligations under the Convention. The amendments in this Schedule will ensure all obligations are met.

Part 1 of Schedule 2 will implement Australia's obligations under Article 31 of the Convention. Article 31 requires Australia to ensure that a foreign country can secure access to stored computer data, including data that has been preserved pursuant to Article 29. The obligations of Article 29 will be implemented by the amendments contained in Schedule 1.

Part 1 of Schedule 2 will amend the MA Act and the TIA Act to allow a stored communication warrant to be obtained for foreign law enforcement purposes. A stored communication warrant currently can only be obtained for domestic investigations.

Part 2 of Schedule 2 will implement Australia's obligations under Articles 30 and 33 of the Convention. Article 30 of the Convention requires Australia to facilitate the expeditious partial disclosure of traffic data to foreign countries to enable the identification of service providers in another State involved in the transmission of a communication and the path of the communication.

Under current law, existing telecommunications data, such as subscriber details and call charge records, can currently only be disclosed to other countries for foreign law enforcement purposes following a formal mutual assistance request from the foreign country. This process can be time-consuming. The amendments in Part 2 will remove the need for a foreign country to submit a formal mutual assistance request, instead enabling existing telecommunications data to be provided to a foreign law enforcement agency on a police to police basis.

Article 33 requires Australia to provide mutual assistance to foreign countries in the real-time collection of traffic data of specified communications transmitted by means of a computer system. Further, Article 33 requires the assistance to be provided with respect to criminal offences for which real-time collection of traffic data would be available in a similar domestic case.

Currently, the TIA Act only enables an authorised officer from an Australian criminal law enforcement agency to collect and disclose prospective telecommunications data for domestic law enforcement purposes. Part 2 will amend the MA Act and the TIA Act to enable the collection of prospective telecommunications data for foreign law enforcement purposes where the foreign country has made a mutual assistance request and the Attorney-General has authorised provision of the assistance.

Part 3 of Schedule 2 will make minor amendments to the Telecommunications Act to ensure that carriers and carriage service providers (C/CSPs) are able to recover any costs incurred when assisting the enforcement of the criminal laws in force in a foreign country (as they can currently recover costs for domestic assistance). This will ensure consistency for C/CSPs regardless of whether they are providing assistance for domestic law enforcement or foreign law enforcement purposes.

Mutual Assistance in Criminal Matters Act 1987

Part 1 - Stored Communications

Subsection 3(1) of the MA Act sets out definitions that are relevant to the operation of the Act. Items 1, 2 and 3 will insert new definitions relevant to the changes that will be made by this Schedule.

Item 1

New section 15B (which will be inserted by item 4) will establish a process for Australia to respond to a foreign country's request for stored communications that are held by a carrier where there are reasonable grounds to believe that they are relevant to a foreign investigation or investigative proceeding.

This item will insert a definition of carrier in subsection 3(1) of the MA Act. Carrier will be given the same meaning as in the TIA Act. The TIA Act gives the term carrier the same meaning as in the Telecommunications Act. The Telecommunications Act defines a carrier as someone who holds a carrier licence and defines a C/CSP as a person who supplies a listed carriage service to the public.

Item 2

This item will insert a definition of investigative proceeding . It will be defined by reference to paragraphs (a) and (b) of the existing definition of proceeding in the MA Act:

·
gathering evidential material that may lead to the laying of a criminal charge (paragraph (a)), or
·
assessing evidential material in support of the laying of a criminal charge (paragraph (b)).

Under some legal systems, a suspect may be formally charged with an offence later in the legal process than in Australia. Accordingly, the inclusion of 'investigative proceeding' in addition to 'investigation' will enable the Attorney-General to authorise Australian law enforcement to apply for a stored communications warrant to assist foreign law enforcement at any point where evidence is still being gathered before charges have been laid.

Item 3

New section 15B which will be inserted by item 4 will establish a process for Australia to respond to a foreign country's request for stored communications where there are reasonable grounds to believe that they are relevant to a foreign investigation or investigative proceeding.

Item 3 will insert a definition of stored communication in subsection 3(1) of the MA Act. Stored communication will be defined by the meaning given to the term in the TIA Act. That is, it will mean a communication that:

·
is not passing over a telecommunications system (so as to distinguish from telecommunications interception)
·
is held on equipment that is operated by, and in the possession of, a carrier, and
·
cannot be accessed on that equipment by a person who is not a party to the communication without the assistance of an employee of the carrier.

Item 4

Item 4 will insert new Part IIIA into the MA Act to govern assistance in relation to access to stored communications.

Section 15B - Requests by foreign countries for stored communications

Currently, prescribed Australian agencies may apply for a warrant to covertly access stored communications (for example, email records) to assist in the investigation of domestic offences. However, there is no mechanism to enable a stored communications warrant to be obtained to assist with a foreign investigation.

Section 13 of the MA Act allows stored communications material (such as email records) which has been covertly accessed in the course of an Australian investigation to be provided to a foreign country through take evidence or production order proceedings before a magistrate. However, this mechanism can be time-consuming and is limited to information which has already been obtained in the course of an Australian investigation.

New section 15B will establish the means by which Australia may respond to a foreign country's request for access to stored communications for foreign law enforcement purposes. It will enable the Attorney-General to authorise the Australian Federal Police (AFP) or State police to apply for a stored communications warrant under section 110 of the TIA Act if:

·
a request for access to the stored communications has been received from the foreign country
·
an investigation or investigative proceeding into a criminal matter has commenced in the requesting country
·
the offence the subject of the investigation or investigative proceeding is punishable by a maximum penalty of three or more years imprisonment, life imprisonment or death, or a fine equivalent to, or greater than 900 penalty units (under section 4AA of the Crimes Act, one penalty unit is currently $110), and
·
there are reasonable grounds to believe that a carrier holds stored communications relevant to the investigation or investigative proceeding.

In accordance with section 142A of the TIA Act, which will be inserted by item 18, information obtained pursuant to a stored communications warrant may only be communicated subject to certain conditions on the use and distribution of the information, and any other conditions imposed by the Attorney-General.

The penalty threshold for an application for a stored communications warrant made pursuant to a mutual assistance request is modelled on that required for a stored communications warrant application in relation to a domestic offence, which is a period of at least three years imprisonment or 900 penalty units.

Item 2 will insert a definition of investigative proceeding which will be defined by reference to paragraphs (a) and (b) only of the existing definition of proceeding in the MA Act.

The Attorney-General will only be able to authorise Commonwealth and State or Territory police forces to apply for, and execute, a stored communications warrant on behalf of a foreign law enforcement agency. This is appropriate as the other bodies that form part of the definition of enforcement agency are Commonwealth, State or Territory integrity or anti-corruption bodies and it would not be appropriate for these bodies to be applying for, or executing warrants for the purpose of a foreign criminal investigation.

The decision by the Attorney-General to authorise the AFP, State or Territory police to apply for a stored communications warrant will be subject to the grounds of refusal in the MA Act. The decision by an issuing authority to issue a warrant will be subject to the safeguards contained in the application and decision making process as set out in the TIA Act. These will be amended as necessary (by items 5-16) to ensure that they also apply to the issuing of a warrant in relation to a mutual assistance application.

Telecommunications (Interception and Access) Act 1979

Item 5

Item 5 will insert a definition of investigative proceeding in subsection 5(1) of the TIA Act. Investigative proceeding will be defined by the meaning given to the term in the MA Act (which will be inserted by item 2). It will be defined by reference to paragraphs (a) and (b) of the existing definition of proceeding in the MA Act to ensure that stored communications can be sought at any point where evidence is still being gathered before charges have been laid regardless of the legal system of the requesting country.

Item 6

Currently, under section 116 of the TIA Act, prescribed Australian enforcement agencies may apply to an 'issuing authority' for a warrant to covertly access stored communications to assist in the investigation of domestic offences. The enforcement agency's investigation must relate to a domestic offence that is punishable by imprisonment for at least three years, or a fine of at least 180 penalty units for an individual or 900 penalty units for a corporation (under section 4AA of the Crimes Act, one penalty unit equates to $A110). This law enforcement tool is not currently available for the investigation or prosecution of a foreign offence.

Item 9 will amend section 116 to facilitate the issue of a stored communications warrant in response to a mutual assistance application.

This item will insert a definition of mutual assistance application in subsection 5(1) of the TIA Act. It will be defined as an application for a stored communications warrant made as a result of an authorisation by the Attorney-General under section 15B of the MA Act. This will enable an application to an issuing authority for a warrant to covertly access stored communications for the investigation or prosecution of a foreign offence.

Item 7

This item will insert new section 5EA into the TIA Act. This new section will define serious foreign contravention for the purpose of the TIA Act. A stored communication warrant will only be able to be issued by an issuing authority following a mutual assistance application if the application relates to a serious foreign contravention .

A serious foreign contravention will be defined as a contravention of the law of a foreign country that is punishable by a maximum penalty of:

·
three or more years imprisonment, life imprisonment or the death penalty, or
·
a fine at least equivalent to 900 penalty units (under section 4AA of the Crimes Act, one penalty unit is currently $110).

This penalty threshold is similar to the threshold for the issue of a stored communications warrant for a domestic offence, which is a period of at least three years imprisonment or 900 penalty units. A similar penalty threshold will ensure that stored communications warrants for foreign offences will only be able to be issued where a warrant for a domestic investigation would also be able to be issued.

Item 8

Section 6H of the TIA Act specifies when an application relates to a particular person. This item will omit 'paragraph 116(1)(d)' in paragraph 6H(c) and replace it with a reference to 'subparagraph 116(1)(d)(i) or (ii), as the case requires'. The reference to paragraph 116(1)(d) will be replaced with 'subparagraph 116(1)(d)(i) or (ii), as the case requires' as a result of the amendment to be made by item 9.

Item 9

Currently, prescribed Australian enforcement agencies may apply to an issuing authority for a warrant to covertly access stored communications to assist in the investigation of domestic offences. Subsection 116(1) of the TIA Act lists the matters about which an issuing authority must be satisfied when considering an enforcement agency's application for a stored communications warrant.

Paragraph 116(1)(d) states that a warrant can only be issued if information that would be likely to be obtained from accessing those stored communications would be likely to assist in connection with the investigation by the agency of a serious contravention of which the person is involved, including as a victim of the serious contravention. A serious contravention is limited to domestic offences that are punishable by imprisonment for at least three years, or a fine of at least 180 penalty units for an individual or 900 penalty units for a corporation (under section 4AA of the Crimes Act, one penalty unit equates to $A110). As such, there is no scope under section 116 for a stored communications warrant to be issued in relation to the investigation or prosecution of a foreign offence.

This item will replace some of the wording of paragraph 116(1)(d) with two new subparagraphs, the effect of which will be that a stored communications warrant will continue to be able to be issued for a serious contravention, but will also be able to be issued in relation to the investigation or prosecution of a foreign offence.

New subparagraph 116(1)(d)(i) will require an issuing authority to be satisfied, in relation to an application other than a mutual assistance application (that is, for the investigation of a domestic contravention), that information that would be likely to be obtained under the warrant would be likely to assist in the investigation of a serious contravention in which the person in involved, including as a victim of the serious contravention. This retains the current wording of paragraph 116(1)(d).

New subparagraph 116(1)(d)(ii) will require an issuing authority to be satisfied, in relation to a mutual assistance application (that is, for the investigation of a foreign offence on behalf of a foreign country), that information that would be likely to be obtained under the warrant would be likely to assist in the investigation of a serious foreign contravention to which the mutual assistance application relates and in which the person is involved, including as a victim of the serious foreign contravention.

Issuing authority is defined in section 6DB of the TIA Act as:

·
a judge of a court created by Parliament who has consented to being appointed an issuing authority
·
a federal magistrate who has consented to being appointed an issuing authority
·
a magistrate who has consented to being appointed an issuing authority, or
·
a member, senior member or Deputy President of the AAT who is enrolled as a legal practitioner and has been enrolled for at least five years.

Although subsection 116(1) references an application by an enforcement agency, under new section 15B (which will be inserted by item 4), only a Commonwealth or State or Territory police force will be able to be authorised to apply for a warrant by the Attorney-General.

Item 10

Section 116 of the TIA Act lists the matters about which an issuing authority must be satisfied when considering an enforcement agency's application for a stored communications warrant. Paragraph 116(1)(e) requires an issuing authority to have regard to certain matters listed in subsection 116(2). The matters listed in subsection 116(2) include:

·
how much the privacy of any person or persons would be likely to be interfered with by accessing those stored communications under a stored communications warrant
·
the gravity of the conduct constituting the serious contravention
·
how much the information that would be likely to be obtained through accessing the stored communications would be likely to assist in connection with the investigation
·
to what extent methods of investigating the serious contravention that do not involve the use of a stored communications warrant in relation to the person have been used by, or are available to, the agency
·
how much the use of such methods would be likely to assist in connection with the investigation by the agency of the serious contravention, and
·
how much the use of such methods would be likely to prejudice the investigation by the agency of the serious contravention, whether because of delay or for any other reason.

This item will insert 'or (2A) (as the case requires)' after 'subsection (2)' in paragraph 116(1)(e). It will be consequential upon item 13, which will insert new subsection 116(2A). Subsection 116(2A) will list the factors that will need to be considered if the stored communications warrant application is a mutual assistance application. These factors will include:

·
how much the privacy of any person or persons would be likely to be interfered with by accessing those stored communications under a stored communications warrant
·
the gravity of the conduct constituting the serious foreign contravention, and
·
how much the information that would be likely to be obtained through accessing the stored communications would be likely to assist in connection with the investigation.

These matters will be substantially similar to those applicable for a warrant application for a domestic purpose.

As a result, the issuing authority will only be required to have regard to the matters referred to in subsection (2) or subsection (2A) (as the case requires). This will ensure that each warrant application is determined by reference to specific criteria and not irrelevant matters.

Item 11

Subsection 116(2) lists certain matters that an issuing authority must have regard to when determining whether to issue a stored communications warrant.

This item will replace the words '[t]he matters' with 'In the case of an application other than a mutual assistance application, the matters'. This item will be consequential upon item 13 which will insert subsection 116(2A). Subsection 116(2A) will list the matters to which an issuing authority must have regard when determining an application for a stored communications warrant made in response to a mutual assistance request. These matters will be substantially similar to those applicable for a warrant application for a domestic purpose. The difference in factors that need to be considered are important in ensuring that all relevant factors are considered by the issuing authority.

This amendment will ensure that subsection 116(2) will only apply for domestic applications and not for applications relating to a mutual assistance request.

Item 12

Subsection 116(2) lists certain factors that an issuing authority must have regard to when determining whether to issue a stored communications warrant. Paragraph 116(2)(c) requires an issuing authority to have regard to how much the information that would be likely to be obtained by accessing those stored communications would assist the domestic investigation.

This item will replace 'paragraph (1)(d)' with 'subparagraph (1)(d)(i)', so that paragraph 116(2)(c) will read 'how much information referred to in subparagraph (1)(d)(i) will be likely to assist in connection with the investigation...'. This item is consequential upon item 7.

Item 7 will amend paragraph 116(1)(d) to provide that an issuing authority may issue a stored communications warrant if satisfied that information likely to be obtained pursuant to a stored communications warrant will be likely to assist with:

·
the investigation of a serious contravention (domestic offence), or
·
the investigation by a foreign country of a serious foreign contravention.

This item, combined with the amendment in item 11, will provide that, in the case of an application other than a mutual assistance application, the issuing authority must have regard to how much the information will be likely to assist in the investigation of a serious contravention (a domestic contravention).

New subsection 116(2A) will outline the matters to which an issuing authority must have regard in relation to a mutual assistance application for a stored communications warrant.

Item 13

Subsection 116(2) lists certain factors that an issuing authority must have regard to when determining whether to issue a stored communications warrant. These matters include:

·
how much the privacy of any person or persons would be likely to be interfered with by accessing those stored communications under a stored communications warrant
·
the gravity of the conduct constituting the serious contravention
·
how much the information that would be likely to be obtained through accessing the stored communications would be likely to assist in connection with the investigation
·
to what extent methods of investigating the serious contravention that do not involve the use of a stored communications warrant in relation to the person have been used by, or are available to, the agency
·
how much the use of such methods would be likely to assist in connection with the investigation by the agency of the serious contravention, and
·
how much the use of such methods would be likely to prejudice the investigation by the agency of the serious contravention, whether because of delay or for any other reason.

However, these factors do not take into account relevant considerations for foreign offences such as how much the information would assist the relevant foreign investigation.

As item 9 will allow an issuing authority to issue a warrant in relation to serious foreign contraventions following a mutual assistance application, it is important that the issuing authority is required to consider matters relevant to the nature of a mutual assistance application.

This item will insert new subsection 116(2A). This subsection will set out the matters to which an issuing authority must have regard (as will be required under paragraph 116(1)(e) as amended by item 10) when determining an application for a stored communications warrant made pursuant to a mutual assistance request.

These matters will be:

·
the likely interference with any person's privacy
·
the gravity of the conduct constituting the serious foreign contravention, and
·
how much the information obtained by accessing the stored communication would assist in connection with the foreign investigation, to the extent this can be determined.

These matters will be substantially similar to those applicable for a warrant application for a domestic purpose under subsection 116(2). The matters currently required to be considered (under subsection 116(2)) in relation to a domestic contravention that will not be mirrored in new subsection 116(2A) relate to knowledge that is only feasible for the enforcement agency making the application to possess in relation to a domestic contravention (such as the extent to which alternative investigative methods have been used or are available). As such, it is not appropriate for these matters to be included as relevant considerations in subsection 116(2A).

Item 14

Subsection 116(3) states that a stored communications warrant may be issued in relation to more than one serious contravention. Item 14 will amend subsection 116(3) so that one warrant may also relate to more than one serious foreign contravention. However, the amendment will prevent a single warrant being issued in relation to both a serious contravention (domestic offence) and a foreign serious contravention.

This is appropriate as there are different considerations that must be taken into account when issuing a warrant and different requirements relating to the use of information that has been obtained under the respective warrants (subsections 139(2), (3) and (4) set out the uses that can be made of information obtained for a domestic offence and new subsection 139(4A) will outline the uses that can be made of information obtained for a foreign offence)

Item 15

Section 118 of the TIA Act sets out what must be included in a stored communications warrant. In particular, subsection 118(3) requires the warrant to include particulars of each serious contravention in relation to which the warrant was issued, as is required to be considered under paragraph 116(1)(d). Item 9 will amend paragraph 116(1)(d) so that an issuing authority may also issue a stored communications warrant if satisfied that information likely to be obtained pursuant to a stored communications warrant will be likely to assist with the investigation by a foreign country of a serious foreign contravention.

This item will insert the words 'or serious foreign contravention' after 'contravention' in subsection 118(3). This will ensure that the particulars of any foreign contravention will need to be included on a stored communications warrant issued as a result of a mutual assistance application.

Item 16

Section 118 of the TIA Act sets out what must be included on a stored communications warrant. In particular, subsection 118(3) requires the warrant to include particulars of each contravention in relation to which the warrant was issued, as is required to be considered under paragraph 116(1)(d).

Item 9 will amend paragraph 116(1)(d) by inserting two subparagraphs so that an issuing authority may issue a stored communications warrant if satisfied that information likely to be obtained pursuant to a stored communications warrant will be likely to assist with the investigation of either a serious contravention (a domestic offence) or a serious foreign contravention.

This item will replace the reference in subsection 118(3) to paragraph 116(1)(d) with a reference to 'subparagraph 116(1)(d)(i) or (ii) as the case may be'. This will ensure that a stored communications warrant that relates to a domestic serious contravention must include the particulars of the domestic offence or offences and a stored communications warrant in relation to a serious foreign contravention must include particulars of the serious foreign contravention or contraventions.

Item 17

Subsection 139(1) of the TIA Act states that lawfully accessed information or stored communications warrant information can only be used or communicated to another person for the purposes listed in subsection 139(2) (which include an investigation into, or proceedings relating to certain offences). Lawfully accessed information is defined in subsection 5(1) of the TIA Act as information obtained by accessing a stored communication. Stored communications warrant information is defined in subsection 5(1) of the TIA Act as information about:

·
an application for a stored communications warrant
·
the issue of a stored communications warrant
·
the existence or non-existence of a stored communications warrant
·
the expiry of a stored communications warrant
·
any other information that is likely to enable the identification of the telecommunications service to which a stored communications warrant relates, or
·
any other information that is likely to enable the identification of a person specified in a stored communications warrant as a person using, or likely to use, the telecommunications service to which the warrant relates.

Item 19 will insert new subsection 139(4A). This new subsection will set out the purposes for which information obtained through the execution of a warrant issued as a result of a mutual assistance application can be used. These purposes will include transmission of information to the foreign country and record keeping requirements.

This item will amend subsection 139(1) to include a reference to new subsection 139(4A) after the reference to subsection 139(2). This will ensure that lawfully accessed information or stored communications warrant information can only be provided to a foreign country where it was obtained for that purpose under a mutual assistance related stored communications warrant.

Item 18

Subsection 139(1) of the TIA Act states that lawfully accessed information or stored communications warrant information can only be used or communicated to another person for the purposes listed in subsection 139(2) (which include an investigation into, or proceedings relating to certain offences).

Item 19 will insert new subsection 139(4A). This new subsection will set out the purposes for which information obtained through the execution of a warrant issued as a result of a mutual assistance application can be used. These purposes will include transmission of information to the foreign country and record keeping requirements.

This item will amend subsection 139(2) to include the words '[I]n the case of information obtained by the agency other than through the execution of a warrant issued as a result of a mutual assistance application.' This amendment will ensure that the purposes for which information may be used or communicated under subsection 139(2) for warrants that were issued in relation to a domestic serious contravention are limited to domestic purposes.

Item 19

Subsection 139(1) of the TIA Act states that lawfully accessed information or stored communications warrant information can only be used or communicated to another person for the purposes listed in subsection 139(2) (which include an investigation into, or proceedings relating to certain offences). Lawfully accessed information is defined in subsection 5(1) of the TIA Act as information obtained by accessing a stored communication. Stored communications warrant information is defined in subsection 5(1) of the TIA Act as information about:

·
an application for a stored communications warrant
·
the issue of a stored communications warrant
·
the existence or non-existence of a stored communications warrant
·
the expiry of a stored communications warrant
·
any other information that is likely to enable the identification of the telecommunications service to which a stored communications warrant relates, or
·
any other information that is likely to enable the identification of a person specified in a stored communications warrant as a person using, or likely to use, the telecommunications service to which the warrant relates.

Item 17 will amend subsection 139(1) to include a reference to new subsection 139(4A) after the reference to subsection 139(2).

This item will insert new subsection 139(4A). This new subsection will set out the purposes for which information obtained through the execution of a mutual assistance related warrant will be able to be used. This subsection will allow information to be used or communicated for the purpose of providing the information to the foreign country or an appropriate authority of the foreign country, or for record keeping requirements.

This new subsection will ensure that following a request from a foreign country, and the execution of a stored communication warrant as a result of that application, the information obtained through accessing the stored communications is able to be provided to the foreign country by the law enforcement agency for its use to investigate the offence or offences to which the mutual assistance request related.

Item 20

Item 19 inserts a new subsection 139(4A) which will set out the purposes for which information obtained through the execution of a warrant issued as a result of a mutual assistance application can be used.

This item will insert new section 142A. This section, notwithstanding new subsection 139(4A), will set out conditions that must be complied with in communicating information obtained under a stored communications warrant to a foreign country. These conditions are:

·
that the information will only be used for the purposes for which the foreign country requested the information
·
that any document or other thing containing the information will be destroyed when it is no longer required for those purposes, and
·
any other condition determined, in writing, by the Attorney-General.

These conditions will ensure that appropriate restrictions are in place when information, particularly personal information, is transferred to a foreign country.

Item 21

Section 161 of the TIA Act requires the Minister to report once every year on the use of stored communications warrants. Subsection 162(1) of the TIA Act sets out that, in relation to each enforcement agency, the report must include statistics about all applications, including telephone applications, for stored communications warrants made during that year.

This item will add two new paragraphs to subsection 162(1). The new paragraphs will require the report to also include, in relation to each enforcement agency:

·
the statistics on the number of mutual assistance applications made during that year, and
·
for each foreign offence in respect of which a stored communications warrant was issued, the Commonwealth, State or Territory offence that is of the same, or of substantially the same, nature.

Items 22 and 23

Section 161 of the TIA Act requires the Minister to report once every year on the use of stored communications warrants. Subsection 162(2) sets out the overall statistics that must be contained in the report. This includes statistics about all applications, including telephone and renewal applications, for stored communications warrants made during that year and how many warrants included special conditions or restrictions relating to access to stored communications under the warrant.

Items 22 and 23 will insert new matters that must be included in the report. Item 22 will insert new paragraph 162(2)(ba) which will require the report to contain statistics on the number of mutual assistance applications made during that year. Item 23 will insert new paragraph 162(2)(e) which will require the report to include for each foreign offence in respect of which a stored communications warrant was issued, the Commonwealth, State or Territory offence that is of the same, or of substantially the same, nature.

Item 24

This item sets out the application of the amendments by this Part. It will ensure that the amendments made by this Part apply to any requests that are under consideration on or after the commencement of this item, regardless of whether the request was made before or after that commencement.

Part 2 - Amendments relating to Telecommunications Data

Under the TIA Act, an authorised officer from an Australian enforcement agency can authorise a telecommunications carrier to disclose historical telecommunications data, such as subscriber details and call charge records, if that officer is of the belief that the disclosure is reasonably necessary for the enforcement of the criminal law, enforcement of a law imposing a pecuniary penalty or protection of the public revenue. Mutual assistance procedures may be used to provide historical telecommunications data to foreign countries for the investigation or prosecution of foreign criminal offences through the use of a search warrant under section 38C of the MA Act following authorisation by the Attorney-General under section 15. However, historical telecommunications data cannot currently be provided to foreign countries on an agency-to-agency basis.

The TIA Act also enables an authorised officer from an Australian criminal law enforcement agency to authorise a telecommunications carrier to disclose prospective telecommunications data - this is, telecommunications data that comes into existence during the period in which the authorisation is in force. However, this type of authorisation can only be made in relation to a domestic offence, not a foreign offence.

Part 2 will amend:

·
the TIA Act to allow the AFP to obtain historical telecommunications data from a telecommunications carrier and pass that data on to a foreign law enforcement agency without the need for a request to be made by the foreign country under the MA Act-that is, on an agency to agency basis, and
·
the MA Act and the TIA Act to enable the collection of prospective telecommunications data for foreign law enforcement purposes, following a formal request from the foreign country and Attorney-General approval.

Mutual Assistance in Criminal Matters Act 1987

Subsection 3(1) of the MA Act sets out definitions that are relevant to the operation of the Act. Items 25 and 26 will insert new definitions relevant to the changes that will be made by this Part.

Item 25

Item 25 will insert a definition of communication into the MA Act. It will be defined by its meaning in the TIA Act which includes a conversation and a message in a variety of forms including speech and text.

The term communication is referred to in new section 15D of the MA Act, which will be inserted by item 27. New section 15D will enable foreign countries to request the disclosure of specified information or documents that relate to a communication passing over a telecommunications system.

Item 26

Item 26 will insert a definition of telecommunications system into the MA Act. It will be defined by its meaning in the TIA Act which is a telecommunications network that is in, or partly in Australia and includes equipment, a line or other facility that is connected to such a network in Australia.

The term telecommunications system will be referred to in new section 15D of the MA Act, which will be inserted by item 27. New section 15D will enable foreign countries to request the disclosure of specified information or documents that relate to a communication passing over a telecommunications system.

Item 27

Currently, the TIA Act enables an authorised officer from an Australian criminal law enforcement agency to authorise a telecommunications carrier to disclose prospective telecommunications data - this is, telecommunications data that comes into existence during the period the authorisation is in force. However, this type of authorisation can only be made in relation to a domestic offence, not a foreign offence.

This item will insert new Part IIIB - Assistance in relation to telecommunications data - into the MA Act. This new Part will contain section 15D which will outline how the Attorney-General can respond to a request by a foreign country for assistance in relation to telecommunications data.

Subsection 15D(1) will set out when section 15D will apply. The section will apply if a foreign country requests the disclosure of specified information or documents that come into existence during a specified period (prospective telecommunications data) and the information or documents relate to the fact of a communication passing over a telecommunications system. This subsection is limited to prospective telecommunications data and will not apply to historical telecommunications data, that is, information or documents that already exist and relate to communications that have already taken place. The disclosure of historical telecommunications data to a foreign country for foreign law enforcement purposes will be governed by new sections 180A and 180C of the TIA Act which will be inserted by item 41.

Subsection 15D(2) will set out what information or documents relate to the fact of a communication passing over a telecommunications system. It will state that information or documents do not relate to the fact of a communication passing over a telecommunications system if the information is the contents of the communication. Therefore, section 15D will not extend to the contents or substance of a communication. These are 'stored communications' and will be governed by the stored communications regime in the TIA Act (which will be amended by items 5 to 23) and section 15B of the MA Act (which will be inserted by item 4) which establish the means by which Australia may respond to a foreign country's request for material obtained through accessing stored communications.

Subsection 15D(3) will set out when the Attorney-General can authorise the provision of assistance to the foreign country. The Attorney-General will only be able to make an authorisation if satisfied that:

·
an investigation relating to a criminal matter involving an offence against the law of the foreign country (the requesting country) has commenced in the requesting country, and
·
the offence to which the investigation relates is punishable by a maximum penalty of imprisonment for three or more years, imprisonment for life or the death penalty.

The penalty threshold of three years imprisonment mirrors the threshold that applies to accessing prospective telecommunications data for domestic purposes (see subsection 180(4) of the TIA Act). This will ensure that the use of these powers for foreign purposes does not extend beyond when these powers can be exercised for domestic purposes.

New section 180B of the TIA Act (which will be inserted by item 41) will govern the authorisation process for obtaining and disclosing the specified information or documents, following Attorney-General approval under new section 15D of the MA which will be inserted by item 27.

As the Attorney-General's approval is required prior to consideration under the TIA Act, the disclosure of prospective telecommunications data will be subject to both the safeguards in the TIA Act and the grounds of refusal in the MA Act.

Telecommunications Act 1997

Division 5 of Part 13 of the Telecommunications Act sets out certain record keeping requirements for C/CSPs relating to the disclosure of telecommunications data under the TIA Act. Items 28, 29, 30 and 31 will make various amendments to the record keeping requirements in Division 5 of Part 13 of the Telecommunications Act to reflect the amendments made in this Part requiring disclosure of telecommunications data for foreign law enforcement purposes.

Item 28

Section 305 of the Telecommunications Act requires C/CSPs or number-database operators to retain notification of an authorisation under Division 4 of Part 4-1 of the TIA Act to disclose telecommunications data for three years.

Item 41 will insert new Division 4A into Part 4-1 of the TIA Act. This new Division will outline when telecommunications data can be disclosed for foreign law enforcement purposes. This item will amend subsection 305(1) of the Telecommunications Act to ensure that where a C/CSP or number-database operator is notified of an authorisation to disclose telecommunications data under new Division 4A of the TIA Act, they will also be required to retain that notification for three years.

Item 29

Section 306 of the Telecommunications Act requires a record of disclosures of historical telecommunications data under, among other provisions, section 177, 178 or 179 or subsection 180(3) of the TIA Act to be made and retained for three years.

Item 41 will insert new Division 4A into Part 4-1 of the TIA Act. This new Division will outline when telecommunications data can be disclosed for foreign law enforcement purposes.

Item 29 will amend subparagraph 306(1)(b)(ii) of the Telecommunications Act to also include section 180A or section 180C. This will ensure that a C/CSP or number-database operator must make and retain a record of disclosures of historical telecommunications data for foreign law enforcement purposes.

Items 30 and 31

Section 306A of the Telecommunications Act requires records of disclosures of prospective telecommunications data under section 180 of the TIA to be made and retained for three years. New section 180B, which will be inserted by item 41, will provide for the disclosure of prospective telecommunications data for foreign law enforcement purposes.

These items will amend paragraph 306A(1)(b) of the Telecommunications Act to also include a reference to section 180B and subsection 180B(2) of the TIA Act respectively. This will ensure that a C/CSP or number-database operator must make and retain a record of disclosures of prospective telecommunications for foreign law enforcement purposes.

Telecommunications (Interception and Access) Act 1979

Subsection 5(1) of the TIA Act sets out definitions that are relevant to the operation of the TIA Act. Items 32 and 33 will insert new, or amend existing, definitions relevant to the changes that will be made by this Schedule.

Item 32

Authorised officer is currently defined in subsection 5(1) of the TIA to be the head or deputy of an enforcement agency or a person who holds a management position covered by an authorisation made by the head of that enforcement agency under subsection 5AB(1) of the TIA Act. Enforcement agency is also defined in subsection 5(1) and includes the AFP, State and Territory police forces as well as other State and Territory misconduct or integrity bodies such as the Office of Police Integrity and the Corruption and Crime Commission.

This item repeals the current definition and replaces it with a two-part definition. The first part inserts a definition for the purposes of new section 180A, 180B, 180C and 180D, new subsection 184(5) and 185(2) and new paragraph 186(1)(ca) (which will be inserted by items 41, 47, 49 and 50 respectively). The definition of authorised officer for these purposes is limited to the Commissioner or Deputy Commissioner of Police (the AFP Commissioner or Deputy Commissioner) or a member of the AFP authorised under new subsection 5AB(1A) (which will be inserted by item 35).

The second part of the definition mirrors the current definition of the head or deputy of an enforcement agency or a person who holds a management position in an enforcement agency covered by an authorisation made by the head of that enforcement agency under subsection 5AB(1).

Item 33

This item will insert a new definition of foreign law enforcement agency . This term will be defined as a police force of a foreign country or any other authority or person responsible for the enforcement of the laws of the foreign country.

This definition is required to clearly outline who telecommunications data can be provided to under new sections 180A, 180B and 180C which will be inserted by item 41. These new sections outline when telecommunications data can be obtained and disclosed for a foreign law enforcement purpose.

Item 34

Section 5AB provides that the head of a law enforcement agency may authorise a management position or office for the purposes of paragraph (c) of the definition of authorised officer .

Item 32 amends the definition of authorised officer to give effect to changes made elsewhere in this Part. As such, item 34 will remove the reference to paragraph (c) and replace it with a reference to subparagraph (b)(iii) of the definition of authorised officer as amended by item 32.

Item 35

Subsection 5AB(1) provides that the head of a law enforcement agency may authorise a management position or office for the purposes of paragraph (c) of the definition of authorised officer .

Subsection 5AB(2) requires the head of the law enforcement agency to give a copy of any authorisation made under subsection 5AB(1) to the Communications Access Co-ordinator (as defined by section 6R of the TIA Act).

This item will repeal subsection 5AB(2) and replace it with two new subsections.

New subsection 5AB(1A) will provide that, for the purposes of new paragraph (a) of the definition of authorised officer , which will be inserted by item 32, the Commissioner of Police may authorise a senior executive AFP employee who is a member of the Australian Federal Police to be an authorised officer. Therefore, to be authorised by the Commissioner of Police to be an authorised officer, the person would need to be a senior executive employee of the AFP (equivalent of an SES) and a member of the AFP. A member of the AFP is any AFP employee (other than a protective service officer) declared by the Commissioner to be a member of the AFP. A declaration can only be made if the Commissioner is satisfied that the employee meets certain competency and qualification requirements.

As such, new paragraph (a) of the definition of 'authorised officer', which will apply for the purposes of new sections 180A, 180B, 180C and 180D, new subsection 184(5) and 185(2) and new paragraph 186(1)(ca) (which will be inserted by items 41, 47, 49 and 50 respectively), will be limited to the Commissioner or Deputy Commissioner of Police (the AFP Commissioner or Deputy Commissioner) or a senior executive AFP employee who is a member of the Australian Federal Police authorised under new subsection 5AB(1A).

New subsection 5AB(2) will replace the requirement currently in subsection 5AB(2). The new subsection will require a copy of an authorisation:

·
made under subsection 5AB(1) to be given to the Communications Access Co-ordinator by the head of the law enforcement agency that made the authorisation, or
·
made under subsection 5AB(1A) to be given to the Communications Access Co-ordinator by the Commissioner of Police.

Item 36

Sections 276, 277 and 278 of the Telecommunications Act prohibit the disclosure of information or documents relating to communications. Section 171 of the TIA Act provides an outline of Part 4-1 of the TIA Act. This outline sets out certain circumstances when sections 276, 277 and 278 of the Telecommunications Act do not prohibit a disclosure of information or a document.

This item will amend subsection 171(1) of the TIA Act to include a reference to new Division 4A of Part 4-1 of the TIA Act to outline that Division 4A, as well as Divisions 3 and 4, will set out some circumstances when sections 276, 277 and 278 of the Telecommunications Act do not prohibit a disclosure of information or a document.

Item 37

Sections 276, 277 and 278 of the Telecommunications Act prohibit the disclosure of information or documents relating to communications. Section 171 of the TIA Act provides an outline of Part 4-1 of the TIA Act. This outline sets out certain circumstances when sections 276, 277 and 278 of the Telecommunications Act do not prohibit a disclosure of information or a document.

Note 1 at the end of section 171 of the TIA Act sets out what Divisions 3 and 4 of Part 4-1 cover. This item will amend Note 1 so that it will also outline what new Division 4A, which will be inserted by item 41, will cover. New Division 4A will cover disclosures for the purposes of foreign law enforcement.

Item 38

Sections 276, 277 and 278 of the Telecommunications Act prohibit the disclosure of information or documents relating to communications. Section 171 of the TIA Act provides an outline of Part 4-1 of the TIA Act. This outline sets out certain circumstances when sections 276, 277 and 278 of the Telecommunications Act do not prohibit a disclosure of information or a document. Subsection 171(3) of the TIA Act outlines that Division 6 of Part 4-1 creates an offence for the secondary use or disclosure of information or a document disclosed under Division 4.

This item will amend subsection 171(3) of the TIA Act to ensure the outline will clearly state that the offence created in Division 6 also applies to information or a document originally disclosed under new Division 4A, which is inserted by item 41, and will provide for disclosures for the purposes of foreign law enforcement.

Item 39

Section 172 provides that Divisions 3 and 4 of Part 4-1 of the TIA Act do not permit the disclosure of information that is the contents or substance of a communication or a document to the extent that the document contains the contents or substance of a communication. The disclosure of the contents or substance of a communication is covered separately by the stored communications regime in the TIA Act.

This item will amend section 172 by inserting a reference to new Division 4A. This will confirm that new Division 4A (which will be inserted by item 41) also will not permit the disclosure of information that is, or a document that contains, the contents or substance of a communication. Item 40

Section 180 outlines when an authorised officer of a criminal law enforcement agency can make an authorisation to disclose specified information or documents that come into existence during the period for which the authorisation will be in force (prospective telecommunications data) for domestic law enforcement purposes. Subsection 180(5) states that prior to making the authorisation, the authorised officer must have regard to how much the privacy of any person or persons would be likely to be interfered with by the disclosure.

This item will repeal subsection 180(5). The requirement to consider the privacy of any person or persons will be replaced by new section 180F which will be inserted by item 41. This new section will mirror the requirement currently in subsection 180(5) but will apply to any authorisation to disclose information or documents under existing Division 4 of Part 4-1 or new Division 4A of Part 4-1 of the TIA Act (which will also be inserted by item 41).

Item 41 - Subdivision A - Primary disclosures

Under the TIA Act, an authorised officer from an Australian enforcement agency can authorise a telecommunications carrier to disclose historical telecommunications data, such as subscriber details and call charge records, if that officer is of the belief that the disclosure is reasonably necessary for the enforcement of the criminal law, enforcement of a law imposing a pecuniary penalty or protection of the public revenue. Mutual assistance procedures may be used to provide historical telecommunications data to foreign countries for the investigation or prosecution of foreign criminal offences through the use of a search warrant under section 38C of the MA Act following authorisation by the Attorney-General under section 15. However, historical telecommunications data cannot currently be provided to foreign countries on an agency-to-agency basis.

The TIA Act also enables an authorised officer from an Australian criminal law enforcement agency to authorise a telecommunications carrier to disclose prospective telecommunications data - this is, telecommunications data that comes into existence during the period in which the authorisation is in force. However, this type of authorisation can only be made in relation to a domestic offence, not a foreign offence.

This item will insert new Division 4A into the TIA Act. This Division will provide the basis for historical and prospective telecommunications data to be provided to a foreign country for foreign law enforcement purposes. The disclosure of the data would be subject to the safeguards in the TIA Act.

Section 180A - Authorisations for access to existing information or documents-enforcement of the criminal law of a foreign country

Under the TIA Act, an authorised officer from an Australian enforcement agency can authorise a telecommunications carrier to disclose existing telecommunications data (historical telecommunications data), such as subscriber details and call charge records, if that officer is of the belief that the disclosure is reasonably necessary for the enforcement of the criminal law. Mutual assistance procedures may be used to provide telecommunications data to foreign countries for the investigation or prosecution of foreign criminal offences through the use of a search warrant, which has been authorised by the Attorney-General under section 15 of the Mutual Assistance Act. However, this is a time-consuming process.

New Section 180A will provide the basis for the AFP to authorise the disclosure of historical telecommunications data to a foreign country for the purposes of the enforcement of the criminal law of a foreign country. Under section 180A, historical telecommunications data will be able to be provided to a foreign country on a police to police basis-that is, without a mutual assistance request-in accordance with the requirements which will be set out in section 180A.

Subsections 180A(1), (2) and (3) will detail the process for disclosure of information or a document to the AFP. Subsections (4) and (5) will detail the process for disclosure of the information or document to a foreign law enforcement agency.

Subsection 180A(1)

Subsection 180A(1) will outline that sections 276, 277 and 278 of the Telecommunications Act do not prevent a disclosure of information or a document if they are covered by an authorisation that is in force under new subsection 180A(2).

Subsection 180A(2)

Subsection 180A(2) will provide that an authorised officer of the AFP may authorise the disclosure of specified information or specified documents that came into existence before the time the person from whom the disclosure is sought receives notification of the authorisation.

An authorised officer is defined in subsection 5(1) of the TIA Act, which will be amended by item 32. For the purposes of section 180A, an authorised officer will be limited to the Australian Federal Police (AFP) Commissioner, an AFP Deputy Commissioner or a senior executive AFP officer who has been authorised in writing by the AFP Commissioner (under subsection 5AB(1A) which will be inserted by item 35). Only these people will be able to authorise a telecommunications carrier or other organisation to disclose relevant information or documents to the AFP under subsection 180A(2).

Subsection 180A(3)

Subsection 180A(3) will set out when an authorised officer is able to make an authorisation under subsection 180A(2). Under subsection 180A(3), an authorised officer will only be able to make an authorisation if he or she is satisfied that the disclosure is reasonably necessary for the enforcement of the criminal law of a foreign country.

This test mirrors the test in subsection 178(3) which provides the test that is applicable to the disclosure of historical telecommunications data for a domestic purpose.

Subsection 180A(4)

Subsection 180A(4) will provide that where specified information or documents have been disclosed because of an authorisation under subsection 180A(2), an authorised officer of the AFP may authorise the disclosure of that information or those documents to a foreign law enforcement agency.

An authorised officer is defined in subsection 5(1) of the TIA Act, which will be amended by item 32. For the purposes of section 180A, an authorised officer will be limited to the Australian Federal Police (AFP) Commissioner, an AFP Deputy Commissioner or a senior executive AFP officer who has been authorised in writing by the AFP Commissioner (under subsection 5AB(1A) which will be inserted by item 35). Only these people will be able to disclose information or documents to a foreign law enforcement agency under subsection 180(4).

A foreign law enforcement agency will be defined as a police force of a foreign country or any other authority or person responsible for the enforcement of the laws of the foreign country. This definition will be inserted into subsection 5(1) of the TIA Act by item 33.

Subsection 180A(5)

Subsection 180A(5) will set out when an authorised officer is able to make an authorisation under subsection 180A(4). Subsection 180A(5) will provide that an authorised officer must not make an authorisation to disclose information or documents to a foreign law enforcement agency unless satisfied that the disclosure is reasonably necessary for the enforcement of the criminal law of a foreign country. An authorised officer would be able to rely on information provided by the foreign law enforcement agency in determining whether the disclosure was reasonably necessary for the enforcement of the criminal law of a foreign country. Further, the disclosure would need to be appropriate in all the circumstances. This will be intended to allow the authorised officer to consider other relevant factors in determining whether it is appropriate to make the disclosure.

Further, new section 180F, which will also be inserted by item 41, will require an authorised officer, prior to making an authorisation, to have regard to how much the privacy of any person or persons would be likely to be interfered with by the disclosure.

Section 180B - Authorisations for access to prospective information or documents-enforcement of the criminal law of a foreign country

Currently, the TIA Act enables an authorised officer from an Australian criminal law enforcement agency to authorise a telecommunications carrier to disclose prospective telecommunications data - this is, telecommunications data that comes into existence during the period the authorisation is in force. However, this type of authorisation can only be made in relation to a domestic offence, not a foreign offence.

New Section 180B will provide the basis for the AFP to authorise the disclosure of prospective telecommunications data to a foreign country for the purposes of the enforcement of the criminal law of a foreign country. Under section 180B, prospective telecommunications data will only be able to be provided to a foreign country where the country has made a mutual assistance request and the Attorney-General has authorised provision of the assistance under new section 15D of the MA Act (which will be inserted by item 27).

Subsections 180B(1) to (7) will detail the process for the disclosure of information or a document to the AFP, including the extension of a prospective authorisation. Subsections 180B(8), (9) and (10) will detail the process for disclosure of the information or document to a foreign law enforcement agency.

Subsection 180B(1)

Subsection 180B(1) will outline that sections 276, 277 and 278 of the Telecommunications Act do not prevent a disclosure of information or a document if they are covered by an authorisation that is in force under new subsection 180B(2).

Subsection 180B(2)

Subsection 180B(2) will provide that an authorised officer of the AFP may authorise the disclosure of specified information or specified documents that come into existence during the period for which the authorisation is in force.

An authorised officer is defined in subsection 5(1) of the TIA Act, which will be amended by item 32. For the purposes of section 180B, an authorised officer will be limited to the Australian Federal Police (AFP) Commissioner, an AFP Deputy Commissioner or a senior executive AFP officer who has been authorised in writing by the AFP Commissioner (under subsection 5AB(1A) which will be inserted by item 35). Only these people will be able to authorise a telecommunications carrier or other organisation to disclose relevant information or documents to the AFP under subsection 180B(2).

Subsection 180B(3)

Subsection 180B(3) will set out when an authorised officer is able to make an authorisation under subsection 180B(2). Under subsection 180B(3), an authorised officer will only be able to make an authorisation if:

·
the Attorney-General has authorised the making of the authorisation under section 15D of the MA Act (which will be inserted by item 27), and
·
the officer is satisfied that the disclosure is:

·
reasonably necessary for the investigation of an offence against a law of a foreign country that is punishable by imprisonment for three or more years, imprisonment for life or the death penalty, and
·
appropriate in all the circumstances.

An authorised officer would be able to rely on information provided by the foreign law enforcement agency in determining whether the disclosure was reasonably necessary for the enforcement of the criminal law of a foreign country. Further, the disclosure would need to be appropriate in all the circumstances. This will be intended to allow the authorised officer to consider other relevant factors in determining whether it is appropriate to make the disclosure.

The Attorney-General will only be able to make an authorisation under section 15D of the MA Act (which will be inserted by item 27) if satisfied that:

·
an investigation relating to a criminal matter involving an offence against the law of the foreign country (the requesting country) has commenced in the requesting country, and
·
the offence to which the investigation relates is punishable by a maximum penalty of imprisonment for three or more years, imprisonment for life or the death penalty.

The test in subsection 180B(3) will mirror the test in subsection 180(4) which provides the test that is applicable to the disclosure of prospective telecommunications data for a domestic purpose. Prospective telecommunications data may only be disclosed for a domestic purpose if the authorised officer is satisfied that the disclosure is reasonably necessary for the investigation of a domestic offence punishable by at least three years imprisonment.

This ensures that these powers will only be able to be used for foreign law enforcement purposes in circumstances in which they would be able to be used for domestic purposes.

Subsection 180B(4)

Subsection 180B(4) will provide that an authorisation made under subsection 180B(2) must be revoked if the authorised officer is satisfied that the disclosure is no longer required. This mirrors the requirement at a domestic level to revoke a domestic authorisation under subsection 180(7) if the disclosure is no longer required.

Subsection 180B(5)

Subsection 180B(5) will outline the period of time for which an authorisation made under subsection 180B(2) is in force. Paragraph (a) will provide that the authorisation will come into force at the time the person from whom the disclosure is sought (the carrier) receives notification of the authorisation. Paragraph (b) will provide that the authorisation will end at the time specified in the authorisation, which will not be able to be longer than 21 days from the day the authorisation was made, or the period as extended under subsection 180B(6).

These time periods differ from the length of time that a domestic authorisation is able to be in force. Under subsection 180(6), an authorisation is able to be in force for 45 days. The shorter time frame in subsection 180B(5) reflects the need for greater scrutiny and control over an authorisation to access prospective telecommunications data for foreign purposes.

Subsection 180B(6)

Subsection 180B(6) sets out the process for extending an authorisation made under subsection 180B(2). This subsection will allow an authorisation to be extended where the authorised officer is satisfied that the disclosure of the prospective data is still:

·
reasonably necessary for the investigation of an offence against a law of a foreign country that is punishable by imprisonment for three or more years, imprisonment for life or the death penalty, and
·
appropriate in all the circumstances.

An authorised officer would be able to rely on information provided by the foreign law enforcement agency in determining whether the disclosure was reasonably necessary for the enforcement of the criminal law of a foreign country. Further, the disclosure would need to be appropriate in all the circumstances. This will be intended to allow the authorised officer to consider other relevant factors in determining whether it is appropriate to make the disclosure.

An authorisation will only be able to be extended once.

There is no corresponding power to extend a domestic authorisation. However, domestic authorisations are able to be in force for 45 days. This extension power recognises the possibility of the need to extend an authorisation in certain circumstances while ensuring appropriate controls and safeguards are in place to control access to, and disclosure of prospective telecommunications data for foreign law enforcement purposes.

Subsection 180B(7)

Subsection 180B(7) will provide that an authorisation may only be extended (under subsection 180B(6)) for a maximum of 21 days (this is still shorter than the 45 days for which a domestic authorisation is allowed to be in force). Subsection 180B(8)

Subsection 180B(8) will outline when 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. The information or documents will only be able to be disclosed if the authorised officer is satisfied that the disclosure is:

·
reasonably necessary for the investigation of an offence against a law of a foreign country that is punishable by imprisonment for three or more years, imprisonment for life or the death penalty, and
·
appropriate in all the circumstances.

These are the same factors that need to be considered under new subsection 180B(3) when determining whether the original authorisation is able to be made. This will ensure that at all points in the process, the authorised officer will need to explicitly consider the appropriateness of the proposed disclosure to the foreign country. An authorised officer would be able to rely on information provided by the foreign law enforcement agency in determining whether the disclosure was reasonably necessary for the enforcement of the criminal law of a foreign country. Further, the disclosure would need to be appropriate in all the circumstances. This will be intended to allow the authorised officer to consider other relevant factors in determining whether it is appropriate to make the disclosure.

Further, new section 180F, which will also be inserted by item 41, will require an authorised officer, prior to making an authorisation, to have regard to how much the privacy of any person or persons would be likely to be interfered with by the disclosure.

Subsection 180B(9)

This subsection will provide that an authorised officer will not be able to make more than one authorisation each day for the disclosure of prospective telecommunications data to a foreign country. This is designed to ensure the AFP reviews the information or documents disclosed to the AFP each day by the carrier before authorising the disclosure of that information, or those documents, to the foreign country.

Subdivision B - Secondary disclosures

Section 180C - Authorisations to disclose information or documents-enforcement of the criminal law of a foreign country

Sections 178 and 179 enable an authorised officer to authorise the disclosure of existing information or documents for the purposes of enforcing the domestic criminal law, enforcing a domestic law imposing a pecuniary penalty or protecting the public revenue. Section 180 enables an authorised officer to authorise the disclosure of prospective information or documents for the purpose of investigating a domestic offence punishable by at least three years imprisonment.

New section 180C will allow information or documents disclosed because of an authorisation under Division 4 (sections 178, 179 and 180), except for information disclosed under section 178A, to be disclosed to a foreign law enforcement agency. Subsection 180C(2) will provide that the authorisation to disclose to a foreign law enforcement agency will only be able to be made if the authorised officer is satisfied that the disclosure is reasonably necessary for the enforcement of the criminal law of a foreign country and the disclosure is appropriate in all the circumstances. These factors will mirror the requirements in new subsection 180A(5) which must be satisfied when historical telecommunications data that has not been originally disclosed for a domestic purpose, is able to be obtained and then disclosed to a foreign country for foreign law enforcement purposes.

New section 180C does not extend to the secondary disclosure of missing person information, as defined in section 182 of the TIA Act. Section 178A allows disclosures of information to Australia police forces for the purposes of locating a person who has been reported missing. Because this information is collected only for the purposes of locating a missing person, disclosing the information to a foreign law enforcement agency for the purpose of investigating a foreign offence is not appropriate.

Further, new section 180F, which will also be inserted by item 41, will require an authorised officer, prior to making an authorisation under section 180C, to have regard to how much the privacy of any person or persons would be likely to be interfered with by the disclosure.

Section 180D - Authorisations to disclose information or documents-enforcement of the criminal law

Section 180A (which will be inserted by item 41) will enable an authorised officer to authorise the disclosure of existing information or documents for foreign law enforcement purposes. Section 180B (which will be inserted by item 41) will enable an authorised officer to authorise the disclosure of prospective information or documents for foreign law enforcement purposes.

New section 180D will allow information or documents disclosed because of an authorisation under new Division 4A to be used by the AFP, or further disclosed to the Organisation or to another enforcement agency for domestic purposes.

Subsection 180D(2) will set out when an authorised officer is able to make an authorisation under subsection 180D(1).

Paragraph 180D(2)(a) will restrict when an authorisation can be made to disclose information or documents to the Organisation to where that disclosure is reasonably necessary for the performance by the Organisation of its function of obtaining intelligence relating to security. This purpose is modelled on the permissible disclosures exempted from the secondary use and disclosure offence in subsection 182(2) of the TIA Act.

Paragraph 180D(2)(b) will restrict when an authorisation can be made to disclose information or documents to an enforcement agency to where the disclosure is reasonably necessary for:

·
the enforcement of the criminal law
·
the enforcement of a law imposing a pecuniary penalty, or
·
the protection of the public revenue.

These purposes are modelled on the disclosures exempted from the secondary use and disclosure offence in subsection 182(2) of the TIA Act.

Paragraph 180D(2)(c) will restrict when an authorisation can be made to allow the AFP to further use the information or documents to where the use is reasonably necessary for:

·
the enforcement of the criminal law
·
the enforcement of a law imposing a pecuniary penalty, or
·
the protection of the public revenue.

These uses are modelled on the uses exempted from the secondary use and disclosure offence in subsection 182(3) of the TIA Act.

Further, new section 180F, which will also be inserted by item 41, will require an authorised officer, prior to making an authorisation under section 180D, to have regard to how much the privacy of any person or persons would be likely to be interfered with by the disclosure.

Subdivision C - Conditions of disclosure to foreign country

Section 180E

Sections 180A, 180B and 180C which will be inserted by this item, will allow information or documents to be disclosed to a foreign law enforcement agency in certain circumstances if specified conditions are met.

New section 180E will impose further restrictions on when information or documents can be disclosed to a foreign country under section 180A, 180B or 180C.

Subsection 180E(1) will set out conditions that must be complied with prior to communicating information or documents to a foreign country. These conditions are:

·
that the information will only be used for the purposes for which the foreign country requested the information
·
that any document or other thing containing the information will be destroyed when it is no longer required for those purposes, and
·
any other condition determined, in writing, by the Attorney-General.

The Attorney-General will only be able to impose conditions on information or documents disclosed under 180B as information provided under 180A or 180C is done so on a police-to-police basis without Attorney-General approval or oversight.

These conditions will ensure that appropriate restrictions are in place when information, particularly personal information, is transferred to a foreign country.

Subsection 180E(2) will state that any conditions determined by the Attorney-General under paragraph 180E(1)(c) will not be a legislative instrument.

Section 180F

New section 180F will also impose further restrictions on when information or documents are able to be disclosed. Section 180F will require an authorised officer, prior to making any authorisation under Division 4 or 4A, to have regard to how much the privacy of any person or persons would be likely to be interfered with by the disclosure.

This requirement will mirror 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 item 40).

This new section will ensure that privacy considerations are taken into account for every disclosure of historical and prospective telecommunications data under Division 4 and 4A of Part 4-1 of the TIA Act.

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, including the amount of information that making the authorisation will give the agency, the relevance of the accessed information to the investigation in question, as well as how third parties' privacy may be impacted by accessing this information.

Item 42

Section 181 of the TIA Act states that section 276, 277 or 278 of the Telecommunications Act do not prohibit the use by a person of information or documents if that use is connected with the disclosure of the information or documents for the purposes of Division 3 or 4 of Part 4-1 of the TIA Act.

This item will amend section 181 to ensure that sections 276, 277 or 278 also do not prohibit the use by a person of information or documents if that use is connected with the disclosure of the information or documents for the purposes of Division 4A of Part 4-1 of the TIA Act which will be inserted by item 41.

Item 43

Subsection 182(1) of the TIA Act makes it an offence to further use or disclose information originally disclosed as permitted by Division 4 of Part 4-1. This item will insert a reference to new Division 4A (which will be inserted by item 41) into paragraph 182(1)(a). This will ensure that the offence provision in subsection 182(1) also applies to information or documents originally disclosed as permitted by new Division 4A.

Item 44

Subsection 182(1) of the TIA Act makes it an offence to further use or disclose information originally disclosed as permitted by Division 4 of Part 4-1. Further, item 43 will amend subsection 182(1) so that it also applies to the further use or disclosure of information originally disclosed as permitted by Division 4A of Part 4-1.

However, new sections 180C and 180D, which will be inserted by item 41, provide for the further use or disclosure of information or documents. Section 180C will allow information or documents disclosed because of an authorisation under Division 4 (sections 178, 179 and 180), except for information disclosed under section 178A, to be disclosed to a foreign law enforcement agency. Section 180D will allow information or documents disclosed because of an authorisation under new Division 4A to be used by the AFP, or further disclosed to the Organisation or to another enforcement agency for domestic purposes.

This item will insert a new subsection into section 182 to clarify that the offence in subsection 182(1) will not apply to a disclosure or use of information if that disclosure or use is permitted by section 180C or 180D.

Item 45

Missing persons information is defined by the TIA Act, in relation to a missing person, as information or a document that is disclosed under section 178A. Section 178A allows an authorising officer of the AFP or a Police Force of a State to authorise a carrier to disclose information if it is relevant to locating a missing person. Non-missing person information is currently defined as information or a document that is disclosed as permitted by Division 4, but not under section 178A. That is, it does not include information disclosed for the purpose of locating a missing person.

This item will amend the definition of non-missing person information to include a reference to Division 4A after Division 4. This will ensure that non-missing person information is defined as information or documents disclosed as permitted by Division 4 or 4A, but not under section 178A

Item 46

Section 183 sets out the requirements that apply to authorisations and notifications. In particular, they must be in writing or in electronic form and comply with any requirements determined by the Communications Access Co-ordinator under subsection 183(2).

This item will amend paragraph 183(1)(a) to include a reference to new Division 4A (which will be inserted by item 41). This will ensure that the requirements in the section will also apply to an authorisation under Division 4A, notification of such an authorisation, revocation of an authorisation or notification of the revocation of an authorisation.

Item 47

Section 184 of the TIA Act outlines who is responsible for providing notification to the person from whom the disclosure is sought following an authorisation or revocation under Division 3 or 4 of Part 4-1 of the TIA Act.

This item will insert two new subsections to the end of section 184. New subsection 184(5) will provide that where an authorised officer makes an authorisation under new subsection 180A(2) or 180B(2), or extends the period for which an authorisation is in force under subsection 180B(6), a relevant staff member of the AFP must notify the person from whom the disclosure of information or documents is sought.

Similarly, new subsection 184(6) will require, following a revocation under subsection 180B(4), a relevant staff member of the AFP to notify the person from whom the disclosure of information or documents was originally sought of the revocation.

Items 48 and 49

Section 185 of the TIA Act requires the head of an enforcement agency to retain each authorisation made by an authorised officer of that enforcement agency under Division 4 of Part 4-1 for three years from the day the authorisation is made.

Items 48 and 49 will add a second subsection to section 185. Item 48 will insert '(1)' before the commencement of the current section so that will become the first subsection of section 185.

Item 49 will insert a new subsection (2). The new subsection will provide that the Commissioner of the AFP must retain each authorisation made under new Division 4A of Part 4-1, which will be inserted by item 41, for three years from the day on which the authorisation was made.

Item 50

Subsection 186(1) of the TIA Act requires enforcement agencies to report to the Minister once a year on their use of the powers under Part 4-1 of Chapter 4 of the TIA Act relating to telecommunications data. This includes reporting on the number of authorisations made under sections 178, 179 and 180 in that year as well as any other matter requested by the Minister in relation to those authorisations.

This item will insert a new paragraph into subsection 186(1). The new paragraph will require the AFP to include in their report to the Minister the number of authorisations made under new sections 180A, 180B, 180C and 180D (which will be inserted by item 41 in that year.

Item 51 - application of amendments made by this part - authorisations

This item will set out the application of the amendments made by this Part on authorisations. It will ensure that the amendments apply only in relation to an authorisation made on or after the commencement of this item. However, this item will also note that an authorisation made under new section 180C will be able to disclose information originally disclosed under a Division 4 authorisation prior to the commencement of this item.

Item 52 - application of amendments made by this part - requests by foreign countries

This item will set out the application of the amendments made by this Part on requests by foreign countries. It will ensure that the amendments made by this Part apply to any requests that are under consideration on or after the commencement of this item, regardless of whether the request was made before or after that commencement.

Item 53 - savings of existing authorisations

This item will ensure that any authorisation by the head of an enforcement agency under subsection 5AB(1) will continue to operate despite the amendments made by this Part to that subsection.

Division 4 - Recovery of costs by carriage service provides etc. for providing assistance to Australian law enforcement authorities

Items 54 and 55

Section 313 of the Telecommunications Act sets out various obligations of C/CSPs in connection with the operation of telecommunications networks or facilities or the supply of carriage services. In particular, subsections 313(3) and (4) require C/CSPs to provide officers and authorities of the Commonwealth and States and Territories such help as is reasonably necessary for:

·
enforcing the criminal law and laws imposing pecuniary penalties
·
protecting the public revenue, and
·
safeguarding national security.

Section 314 sets out the terms and conditions on which help is to be provided as required under subsection 313(3) or (4). In particular, subsection 314(2) states that providing help is on a no profit, no cost basis.

Items 54 and 55 will insert new paragraphs into subsections 313(3) and (4). The new paragraphs will require C/CSPs to also provide assistance to officers and authorities of the Commonwealth and the States and Territories for the purpose of assisting the enforcement of the criminal laws in force in a foreign country.

These new paragraphs will ensure that carriers are required to provide assistance where requested to do so by law enforcement agencies under the new provisions inserted by item 41 in relation to providing telecommunications data to a foreign country for the purposes of enforcing the criminal law of the foreign country. Further, due to the operation of subsection 314(2), this assistance will be able to be provided on a no profit, no loss basis.

Item 114

This item will ensure that the amendments made by items 54 and 55 only apply in relation to help provided by C/CSPs or carriage service intermediaries on or after the commencement of this item.


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