Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015 (39 of 2015)

Schedule 3   Oversight by the Commonwealth Ombudsman

Part 1   Amendments

Telecommunications (Interception and Access) Act 1979

7   Before Chapter 5

Insert:

Chapter 4A - Oversight by the Commonwealth Ombudsman

186B Inspection of records

(1) The Ombudsman must inspect records of an enforcement agency to determine:

(a) the extent of compliance with Chapter 4 by the agency and its officers; and

(b) if the agency is a criminal law-enforcement agency - the extent of compliance with Chapter 3 by the agency and its officers.

(2) For the purpose of an inspection under this section, the Ombudsman:

(a) after notifying the chief officer of the agency, may enter at any reasonable time premises occupied by the agency; and

(b) is entitled to have full and free access at all reasonable times to all records of the agency that are relevant to the inspection; and

(c) despite any other law, is entitled to make copies of, and to take extracts from, records of the agency; and

(d) may require a member of staff of the agency to give the Ombudsman any information that the Ombudsman considers necessary, being information:

(i) that is in the member's possession, or to which the member has access; and

(ii) that is relevant to the inspection.

(3) Before inspecting records of an enforcement agency under this section, the Ombudsman must give reasonable notice to the chief officer of the agency of when the inspection will occur.

(4) The chief officer must ensure that members of staff of the agency give the Ombudsman any assistance the Ombudsman reasonably requires to enable the Ombudsman to perform functions under this section.

(5) To avoid doubt, subsection (1) does not require the Ombudsman to inspect all of the records of an enforcement agency that are relevant to the matters referred to in paragraphs (1)(a) and (b).

(6) While an operation is being conducted under:

(a) a stored communications warrant; or

(b) an authorisation under Division 3, 4 or 4A of Part 4-1;

the Ombudsman may refrain from inspecting any records of the agency concerned that are relevant to the obtaining or execution of the warrant or authorisation.

186C Power to obtain relevant information

(1) If the Ombudsman has reasonable grounds to believe that an officer of a particular enforcement agency is able to give information relevant to an inspection under this Chapter of the agency's records, the Ombudsman may:

(a) if the Ombudsman knows the officer's identity - by writing given to the officer, require the officer to do one or both of the following:

(i) give the information to the Ombudsman, by writing signed by the officer, at a specified place and within a specified period;

(ii) attend before a specified inspecting officer to answer questions relevant to the inspection; or

(b) if the Ombudsman does not know the officer's identity - require the chief officer of the agency, or a person nominated by the chief officer, to attend before a specified inspecting officer to answer questions relevant to the inspection.

(2) A requirement under subsection (1) to attend before an inspecting officer must specify:

(a) a place for the attendance; and

(b) a period within which, or a time and day when, the attendance is to occur.

The place, and the period or the time and day, must be reasonable having regard to the circumstances in which the requirement is made.

(3) A person must not refuse:

(a) to attend before a person; or

(b) to give information; or

(c) to answer questions;

when required to do so under this section.

Penalty for an offence against this subsection: Imprisonment for 6 months.

186D Ombudsman to be given information and access despite other laws

(1) Despite any other law, a person is not excused from giving information, answering a question, or giving access to a document, as and when required under this Chapter, on the ground that giving the information, answering the question, or giving access to the document, as the case may be, would:

(a) contravene a law; or

(b) be contrary to the public interest; or

(c) might tend to incriminate the person or make the person liable to a penalty.

(2) However:

(a) the information, the answer, or the fact that the person has given access to the document, as the case may be; and

(b) any information or thing (including a document) obtained as a direct or indirect consequence of giving the information, answering the question or giving access to the document;

is not admissible in evidence against the person except in a proceeding by way of a prosecution for an offence against section 133, 181A, 181B or 182, or against Part 7.4 or 7.7 of the Criminal Code.

(3) Nothing in section 133, 181A, 181B or 182, or in any other law, prevents an officer of an enforcement agency from:

(a) giving information to an inspecting officer (whether orally or in writing and whether or not in answer to a question); or

(b) giving access to a record of the agency to an inspecting officer;

for the purposes of an inspection under this Chapter of the agency's records.

(4) Nothing in section 133, 181A, 181B or 182, or in any other law, prevents an officer of an enforcement agency from making a record of information, or causing a record of information to be made, for the purposes of giving the information to a person as permitted by subsection (3).

186E Application of Ombudsman Act

(1) Section 11A of the Ombudsman Act 1976 does not apply in relation to the exercise or proposed exercise of a power, or the performance or the proposed performance of a function, of the Ombudsman under this Chapter.

(2) A reference in section 19 of the Ombudsman Act 1976 to the Ombudsman's operations does not include a reference to anything that an inspecting officer has done or omitted to do under this Chapter.

(3) Subject to section 186D of this Act, subsections 35(2), (3), (4) and (8) of the Ombudsman Act 1976 apply for the purposes of this Chapter and so apply as if:

(a) a reference in those subsections to an officer were a reference to an inspecting officer; and

(b) a reference in those subsections to information did not include a reference to lawfully accessed information or lawfully intercepted information; and

(c) a reference in those subsections to that Act were a reference to this Chapter; and

(d) paragraph 35(3)(b) of that Act were omitted; and

(e) section 35A of that Act had not been enacted.

186F Exchange of information between Ombudsman and State inspecting authorities

(1) If the Ombudsman has obtained under this Act information relating to an authority of a State or Territory, the Ombudsman may give the information to another authority of that State or Territory (an inspecting authority ) that:

(a) has powers under the law of that State or Territory; and

(b) has the function of making inspections of a similar kind to those provided for in section 186B of this Act when the inspecting authority is exercising those powers.

(2) However, the Ombudsman may give the information only if the Ombudsman is satisfied that giving the information is necessary to enable the inspecting authority to perform its functions in relation to the authority of the State or Territory.

(3) The Ombudsman may receive, from an inspecting authority, information relevant to the performance of the Ombudsman's functions under this Act.

186G Delegation by Ombudsman

(1) The Ombudsman may delegate:

(a) to an APS employee responsible to the Ombudsman; or

(b) to a person having similar oversight functions to the Ombudsman under the law of a State or Territory or to an employee responsible to that person;

all or any of the Ombudsman's powers under this Chapter other than a power to report to the Minister.

(2) A delegate must, upon request by a person affected by the exercise of any power delegated to the delegate, produce the instrument of delegation, or a copy of the instrument, for inspection by the person.

186H Ombudsman not to be sued

The Ombudsman, an inspecting officer, or a person acting under an inspecting officer's direction or authority, is not liable to an action, suit or proceeding for or in relation to an act done, or omitted to be done, in good faith in the performance or exercise, or the purported performance or exercise, of a function or power conferred by this Chapter.

186J Reports

(1) The Ombudsman must report to the Minister, in writing, about the results of inspections under section 186B of the records of agencies during a financial year.

(2) The report under subsection (1) must be given to the Minister as soon as practicable after the end of the financial year.

(3) The Minister must cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the Minister receives it.

(4) The Ombudsman may report to the Minister in writing at any time about the results of an inspection under this Chapter and must do so if so requested by the Minister.

(5) If, as a result of an inspection under this Chapter of the records of an enforcement agency, the Ombudsman is of the opinion that an officer of the agency has contravened a provision of this Act, the Ombudsman may include in his or her report on the inspection a report on the contravention.

Note: In complying with this section, the Ombudsman remains bound by the obligations imposed by sections 133, 181B and 182.

(6) The Ombudsman must give a copy of a report under subsection (1) or (4) to the chief officer of any enforcement agency to which the report relates.

(7) A report under this section must not include information which, if made public, could reasonably be expected to:

(a) endanger a person's safety; or

(b) prejudice an investigation or prosecution; or

(c) compromise any enforcement agency's operational activities or methodologies.