Explanatory Memorandum(Circulated by authority of the Treasurer, The Hon Josh Frydenberg MP)
Chapter 3 Access to telecommunications interception information
Outline of chapter
3.1 Schedule 2 to the Bill amends the TIA Act to allow ASIC to receive and use intercepted information for its own investigations and prosecutions of serious offences.
3.2 All legislative references in this chapter are to the TIA Act unless indicated otherwise.
Summary of new law
3.3 The amendments allow interception agencies to provide information about interception warrants or lawfully intercepted information to ASIC for any serious offences that ASIC can investigate.
3.4 The amendments also allow an ASIC member or staff member to use, record or provide another person with the received information for the purpose of an investigation of a serious offence by ASIC and subsequent reporting or prosecutions.
Comparison of key features of new law and current law
|New law||Current law|
|The chief officer of an interception agency can provide an ASIC member or staff member with information about an interception warrant or lawfully intercepted information, where the information relates, or appears to relate, to a matter that ASIC can investigate involving a serious offence or the likely commission of a serious offence.
The chief officer can also provide the information through an authorised officer of the interception agency.
|The chief officer of an interception agency cannot provide an ASIC staff member with information about an interception warrant or lawfully intercepted information.|
|An ASIC member or staff member can also use, record or provide another person with information about an interception warrant or lawfully intercepted information for a permitted purpose.||An ASIC staff member can receive information about an interception warrant or lawfully intercepted information if the ASIC staff member is assisting an interception agency's investigation, or for the purpose of a Royal Commission inquiry, but cannot provide the information to another person for the purpose of an ASIC investigation.|
|A permitted purpose includes an investigation of a serious offence by ASIC and subsequent reporting or prosecutions.||A permitted purpose does not include an investigation of a serious offence by ASIC, or any subsequent reporting or prosecution.|
Detailed explanation of new law
3.5 The TIA Act prohibits the interception of communications and access to stored communications. The Telecommunications Act 1997 prohibits telecommunications service providers from disclosing information about their customers' use of telecommunications services (telecommunications data).
3.6 The TIA Act then sets out certain exceptions to those prohibitions to permit eligible Australian law enforcement agencies and the Australian Security Intelligence Organisation to obtain warrants to intercept communications, obtains warrants to access stored communications or authorise disclosure of telecommunications data. This includes the provision of information to other agencies for subsequent reporting and prosecutions.
3.7 Telecommunications interception information is obtained by listening to or recording content passing over a telecommunications service (for example, real-time listening to telephone calls).
3.8 This is different to stored communications and telecommunications data. Stored communications are the content of historical communications, such as short message service (SMS) or email, held by the carrier. Telecommunications data refers to the underlying details or 'metadata' of communications, such as subscriber details, call time or call location.
3.9 As indicated above, the TIA Act contains an exception to allow for the interception of communications in certain circumstances (for example, for the purposes of investigating serious offences).
3.10 Only specific listed agencies may obtain an interception warrant under the TIA Act; these are 'interception agencies'. Interception agencies are broadly Federal and State police, the Australian Security Intelligence Organisation and anti-corruption bodies.
3.11 ASIC investigates and prosecutes offences under the Corporations Act 2001 and other corporate crime. Some of these offences are defined as serious offences under the TIA Act, such as insider trading, market manipulation and financial services fraud.
3.12 ASIC is currently able to access and use stored communications and telecommunications data. However, ASIC is not listed as an interception agency and its staff members do not have access to telecommunications intercept information, unless they are assisting with an interception agency's investigation or prosecution or a Royal Commission inquiry.
Enabling ASIC to access and use intercepted information
3.13 Information obtained by interception activities is defined as 'lawfully intercepted information' under sections 5 and 6E of the TIA Act. Information about a warrant is defined as 'interception warrant information' under sections 5 and 6EA. Under specific legislated circumstances, interception agencies can share this information with other bodies, such as Commonwealth Royal Commissions.
3.14 The Bill extends those circumstances so that the chief officer of an interception agency (or authorised officer of that interception agency) can provide interception warrant information or lawfully intercepted information to an ASIC member or staff member where the information relates, or appears to relate, to a serious offence that ASIC can investigate. [Schedule 2, item 11, paragraph 68(p)]
3.15 This ensures ASIC has access to intercepted information as well as telecommunications data and stored communications for its own investigations and prosecutions. Importantly, the Bill does not allow ASIC to intercept information itself but rather allows ASIC to receive and use information already intercepted by other agencies.
3.16 To facilitate ASIC's investigations and prosecutions of serious offences, the Bill allows an ASIC member or staff member to use and record the received information, as well as communicate the information to another person, for a permitted purpose in relation to ASIC. [Schedule 2, item 10, subsection 67(3)]
3.17 'Permitted purpose' is defined in the TIA Act in relation to a specific agency or body under section 5. The definition does not currently capture ASIC or its functions.
3.18 Accordingly, the Bill expands the scope of 'permitted purpose' to include a purpose connected with:
- an investigation by ASIC of a serious offence or of the likely commission of a serious offence;
- a report on such an investigation;
- the making of a decision whether or not to begin a prosecution for a serious offence if the prosecution arises from or relates to such an investigation; or
- a prosecution for a serious offence if the prosecution arises from or relates to such an investigation.
- [Schedule 2, items 2 to 4, definition of 'permitted purpose' in subsection 5(1)]
3.19 An example of a report on such an ASIC investigation is an interim report on the investigation.
3.20 The Bill does not change the existing scope of serious offences defined in the TIA Act or permit ASIC to obtain an interception warrant.
3.21 The terms ASIC and staff member of ASIC are inserted into the definition section of the TIA Act. [Schedule 2, items 1 and 5, subsection 5(1)]
3.22 The Bill amends the headings within section 67 of the TIA Act to better reflect that communicating, using and recording intercepted information is not limited to an officer or staff member of an interception agency. The section currently also makes provision for an officer of a Commonwealth Royal Commission. [Schedule 2, items 7 to 9, section 67]
Application and transitional provisions
3.23 The amendments apply to information about interception warrants or lawfully intercepted information obtained by an interception agency before, at or after the day after Royal Assent. [Schedule 2, item 12]
3.24 This ensures that ASIC has access to interception information that interception agencies currently hold, which will enhance ASIC's ability to investigate and successfully prosecute serious offences in the future.
3.25 The Treasury Laws Amendment (Strengthening Corporate and Financial Sector Penalties) Act 2019 removed the subsection numbering in section 1041G of the Corporations Act 2001 . Accordingly, the Bill includes an amendment updating a reference in the TIA Act to former subsection 1041G(1) of the Corporations Act 2001 . [Schedule 2, item 6, paragraph 5D(5C)(g)]