CYBERCRIME LEGISLATION AMENDMENT BILL 2011

i Cybercrime Legislation Amendment Bill 2011 No. , 2011

Contents

1 Short

title

...........................................................................................

2 Commencement

.................................................................................

3 Schedule(s)

........................................................................................

Schedule 1--Preservation regime for stored communications

Telecommunications Act 1997

Telecommunications (Interception and Access) Act 1979

Schedule 2--Amendments relating to Mutual Assistance

Part 1--Stored communications

Mutual Assistance in Criminal Matters Act 1987

Telecommunications (Interception and Access) Act 1979

Part 2--Telecommunications data

Mutual Assistance in Criminal Matters Act 1987

Telecommunications Act 1997

Telecommunications (Interception and Access) Act 1979

Part 3--Recovery of costs by carriage service providers etc.

for providing assistance to Australian law enforcement

authorities

Telecommunications Act 1997

Schedule 3--Computer offences amendments

Criminal Code Act 1995

Schedule 4--Telecommunications data confidentiality

Telecommunications (Interception and Access) Act 1979

Schedule 5--Miscellaneous

Telecommunications (Interception and Access) Act 1979

Cybercrime Legislation Amendment Bill 2011 No. , 2011 1

A Bill for an Act to implement the Council of

Europe Convention on Cybercrime, and for other

purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Cybercrime Legislation Amendment

Act 2011.

2 Commencement

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

2 Cybercrime Legislation Amendment Bill 2011 No. , 2011

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1. Sections 1 to 3

and anything in

this Act not

elsewhere covered

by this table

The day this Act receives the Royal Assent.

2. Schedules 1

and 2

The 28th day after this Act receives the

Royal Assent.

3. Schedule 3

The later of:

(a) the day this Act receives the Royal

Assent; and

(b) the day the Council of Europe

Convention on Cybercrime, done at

Budapest on 23 November 2001, comes

into force for Australia.

However, the provision(s) do not commence

at all if the event mentioned in paragraph (b)

does not occur within the period of 6 months

beginning on the day this Act receives the

Royal Assent.

The Minister must announce by notice in the

Gazette the day the Council of Europe

Convention on Cybercrime comes into force

for Australia.

4. Schedules 4

and 5

The 28th day after this Act receives the

Royal Assent.

Note:

This table relates only to the provisions of this Act as originally

enacted. It will not be amended to deal with any later amendments of

this Act.

(2) Any information in column 3 of the table is not part of this Act.

Information may be inserted in this column, or information in it

may be edited, in any published version of this Act.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or

repealed as set out in the applicable items in the Schedule

Schedule 1 Preservation regime for stored communications

4 Cybercrime Legislation Amendment Bill 2011 No. , 2011

Schedule 1--Preservation regime for stored

communications

Telecommunications Act 1997

1 After paragraph 313(7)(c)

Insert:

(ca) complying with a domestic preservation notice or a foreign

preservation notice that is in force under Part 3-1A of that

Act; or

Telecommunications (Interception and Access) Act 1979

2 Subsection 5(1)

Insert:

certifying official, of an issuing agency, means:

(a) if the issuing agency is an enforcement agency or

interception agency--a certifying officer of the agency; and

(b) if the issuing agency is the Organisation--a certifying person

of the Organisation.

3 Subsection 5(1)

Insert:

domestic preservation notice has the meaning given by subsection

107H(1).

4 Subsection 5(1)

Insert:

foreign preservation notice has the meaning given by subsection

107N(1).

5 Subsection 5(1)

Insert:

historic domestic preservation notice has the meaning given by

subparagraph 107H(1)(b)(i).

Preservation regime for stored communications Schedule 1

Cybercrime Legislation Amendment Bill 2011 No. , 2011 5

6 Subsection 5(1) (paragraph (a) of the definition of

interception agency)

After "Part 2-6", insert ", Part 3-1A".

7 Subsection 5(1) (after paragraph (b) of the definition of

interception agency)

Insert:

(ba) for the purposes of Part 3-1A--an enforcement agency that

is:

(i) a Commonwealth agency; or

(ii) an eligible authority of a State in relation to which a

declaration under section 34 is in force; or

8 Subsection 5(1)

Insert:

issuing agency, in relation to a preservation notice, means the

agency that gives the notice.

9 Subsection 5(1)

Insert:

ongoing domestic preservation notice has the meaning given by

subparagraph 107H(1)(b)(ii).

10 Subsection 5(1)

Insert:

preservation notice means a domestic preservation notice or a

foreign preservation notice.

11 Subsection 5(1)

Insert:

preservation notice information has the meaning given by

section 6EAA.

12 Subsection 5(1)

Insert:

Schedule 1 Preservation regime for stored communications

6 Cybercrime Legislation Amendment Bill 2011 No. , 2011

preserve, in relation to a stored communication, means maintain

the integrity of:

(a) the stored communication; or

(b) a copy of the stored communication.

13 Subsection 5(1)

Insert:

relates:

(a) a stored communication relates to a person only if it is:

(i) a stored communication that the person has made; or

(ii) a stored communication that another person has made

and for which the person is the intended recipient; and

(b) a stored communication relates to a telecommunications

service only if it has passed over a telecommunications

system by way of the telecommunications service.

14 Subsection 5(1)

Insert:

relevant period, for a domestic preservation notice, means:

(a) for an historic domestic preservation notice--the period

referred to in subparagraph 107H(1)(b)(i); and

(b) for an ongoing domestic preservation notice--the period

referred to in subparagraph 107H(1)(b)(ii).

15 Subsection 5(1)

Insert:

working day means any day except:

(a) a Saturday or a Sunday; or

(b) a day that is a public holiday in any State or Territory.

16 After section 6EA

Insert:

6EAA Preservation notice information

A reference in this Act to preservation notice information is a

reference to:

Preservation regime for stored communications Schedule 1

Cybercrime Legislation Amendment Bill 2011 No. , 2011 7

(a) information about any of the following:

(i) the giving of a preservation notice;

(ii) for a foreign preservation notice--the making of a

request under section 107P to preserve stored

communications covered by the notice;

(iii) the existence or non-existence of a preservation notice;

(iv) the expiry of a preservation notice; or

(b) any other information that is likely to enable the

identification of:

(i) the person or telecommunications service specified in a

preservation notice; or

(ii) the person or telecommunications service to which a

preservation notice relates.

17 Chapter 3 (heading)

Repeal the heading, substitute:

Chapter 3--Preserving and accessing stored

communications

18 Before Part 3-1

Insert in Chapter 3:

Part 3-1A--Preserving stored communications

Division 1--Outline of this Part

107G Outline of this Part

This Part establishes a system of preserving certain stored

communications that are held by a carrier. The purpose of the

preservation is to prevent the communications from being

destroyed before they can be accessed under certain warrants

issued under this Act.

Under the system, certain agencies can give a preservation notice

to a carrier requiring the carrier to preserve all stored

communications that the carrier holds that relate to the person or

telecommunications service specified in the notice. The carrier will

Schedule 1 Preservation regime for stored communications

8 Cybercrime Legislation Amendment Bill 2011 No. , 2011

breach its obligations under section 313 of the Telecommunications

Act 1997 if it does not comply with the notice.

There are 2 types of preservation notices: domestic preservation

notices (which cover stored communications that might relate

either to a contravention of certain Australian laws or to security)

and foreign preservation notices (which cover stored

communications that might relate to a contravention of certain

foreign laws).

Division 2 deals with domestic preservation notices. There are 2

kinds of domestic preservation notices:

(a) historic domestic preservation notices, which cover stored

communications held by the carrier on a particular day; and

(b) ongoing domestic preservation notices, which cover stored

communications held by the carrier in a particular 30-day

period.

An issuing agency (which is an enforcement agency or the

Organisation for an historic domestic preservation notice, and an

interception agency or the Organisation for an ongoing domestic

preservation notice) can only give a domestic preservation notice if

the conditions in section 107J are satisfied. There are certain

grounds on which the notice must be revoked (see section 107L).

Division 3 deals with foreign preservation notices. Foreign

preservation notices, like historic domestic preservation notices,

cover stored communications held by the carrier on a particular

day. Only the Australian Federal Police can give a foreign

preservation notice to a carrier and it can only do so if a foreign

country has made a request for the preservation in accordance with

section 107P. There are certain grounds on which the notice must

be revoked (see section 107R).

Division 4 has miscellaneous provisions relating to both domestic

and foreign preservation notices (such as provisions about the

giving of evidentiary certificates by carriers and issuing agencies).

The Ombudsman has functions in relation to preservation notices

given by issuing agencies (other than the Organisation) and the

Preservation regime for stored communications Schedule 1

Cybercrime Legislation Amendment Bill 2011 No. , 2011 9

Inspector-General of Intelligence and Security has functions in

relation to preservation notices given by the Organisation.

Division 2--Domestic preservation notices

107H Domestic preservation notices

(1) An issuing agency may give a carrier a written notice (a domestic

preservation notice) requiring the carrier to preserve, while the

notice is in force, all stored communications that:

(a) relate to the person or telecommunications service specified

in the notice; and

(b) the carrier holds at any time during:

(i) the period that starts at the time the carrier receives the

notice and ends at the end of the day the carrier receives

the notice (in which case the notice is an historic

domestic preservation notice); or

(ii) the period that starts at the time the carrier receives the

notice and ends at the end of the 29th day after the day

the carrier receives the notice (in which case the notice

is an ongoing domestic preservation notice).

(2) However, the agency can only give the notice if the conditions in

subsection 107J(1) or (2) are satisfied.

(3) In the notice, the agency can only specify:

(a) one person; or

(b) one or more telecommunications services; or

107J Conditions for giving domestic preservation notices

Notices given by enforcement agencies or interception agencies

(1) A domestic preservation notice may be given under subsection

107H(1) if:

(a) the issuing agency is:

(i) for an historic domestic preservation notice--an

enforcement agency; and

Schedule 1 Preservation regime for stored communications

10 Cybercrime Legislation Amendment Bill 2011 No. , 2011

(ii) for an ongoing domestic preservation notice--an

interception agency; and

(b) the agency is investigating a serious contravention; and

suspecting that, in the relevant period for the notice, there are

stored communications in existence, or stored

communications might come into existence, that:

(i) might assist in connection with the investigation; and

(ii) relate to the person or telecommunications service

specified in the notice; and

(d) the agency intends that if, at a later time, the agency

considers that the stored communications would be likely to

assist in connection with the investigation, then the agency

will apply for a Part 2-5 warrant or a stored communications

warrant to access those communications; and

(e) for an ongoing domestic preservation notice--there is not

another ongoing domestic preservation notice in force that:

(i) was given by the agency to the same carrier; and

(ii) specifies the same person or telecommunications

service.

Notices given by the Organisation

(2) A domestic preservation notice may be given under subsection

107H(1) if:

(a) the issuing agency is the Organisation; and

(b) the Organisation considers that there are reasonable grounds

for suspecting that, in the relevant period for the notice, there

are stored communications in existence, or stored

communications might come into existence, that:

(i) might assist the Organisation in carrying out its function

of obtaining intelligence relating to security; and

(ii) relate to the person or telecommunications service

specified in the notice; and

Organisation considers that the stored communications would

be likely to assist in carrying out that function, then the

Director-General of Security will request a Part 2-2 warrant

to access those communications; and

Preservation regime for stored communications Schedule 1

Cybercrime Legislation Amendment Bill 2011 No. , 2011 11

(d) for an ongoing domestic preservation notice--there is not

another ongoing domestic preservation notice in force that:

(i) was given by the Organisation to the same carrier; and

(ii) specifies the same person or telecommunications

service.

107K When a domestic preservation notice is in force

A domestic preservation notice:

(a) comes into force when the carrier receives it; and

(b) ceases to be in force at the earliest of the following times:

(i) the end of the period of 90 days, starting on the day the

carrier receives it;

(ii) if the notice is revoked under section 107L--when the

carrier receives notice of the revocation;

(iii) if a Part 2-5 warrant or stored communications warrant

authorising access to the stored communications

covered by the notice is issued in relation to the issuing

agency--when the warrant ceases to be in force;

(iv) if a Part 2-2 warrant authorising access to the stored

communications covered by the notice is issued in

relation to the issuing agency--the end of the period of

5 days after the day the warrant was issued.

107L Revoking a domestic preservation notice

Discretionary revocation

(1) An issuing agency that has given a domestic preservation notice

may revoke the notice at any time.

Mandatory revocation

(2) An issuing agency that has given a domestic preservation notice

must revoke the notice if:

(a) if the issuing agency is an enforcement agency or

interception agency:

(i) the condition in paragraph 107J(1)(b) or (c) is no longer

satisfied; or

Schedule 1 Preservation regime for stored communications

12 Cybercrime Legislation Amendment Bill 2011 No. , 2011

(ii) the agency decides not to apply for a Part 2-5 warrant or

stored communications warrant to access the stored

communications covered by the notice; or

(b) if the issuing agency is the Organisation:

(i) the condition in paragraph 107J(2)(b) is no longer

satisfied; or

(ii) the Organisation is satisfied that the Director-General of

Security will not request a Part 2-2 warrant to access the

stored communications covered by the notice.

Revocation effected by giving revocation notice

(3) A domestic preservation notice is revoked by the issuing agency

giving the carrier to whom it was given written notice of the

revocation.

107M Persons who act on the issuing agency's behalf

Historic domestic preservation notices

(1) An historic domestic preservation notice may only be given or

revoked on behalf of an issuing agency by:

(a) if the issuing agency is an enforcement agency--a person

who may, under section 110, apply on the agency's behalf for

a stored communications warrant to access the stored

communications covered by the notice; and

(b) if the issuing agency is the Organisation--a certifying

person.

Ongoing domestic preservation notices

(2) An ongoing domestic preservation notice may only be given on

behalf of an issuing agency by:

(a) if the issuing agency is an interception agency--an

authorised officer of the agency; and

(b) if the issuing agency is the Organisation--the

Director-General of Security.

(3) An ongoing domestic preservation notice may only be revoked on

behalf of an issuing agency by:

(a) if the issuing agency is an interception agency--an

authorised officer of the agency; and

Preservation regime for stored communications Schedule 1

Cybercrime Legislation Amendment Bill 2011 No. , 2011 13

(b) if the issuing agency is the Organisation--a certifying

person.

Division 3--Foreign preservation notices

107N When a foreign preservation notice can be given

(1) If the Australian Federal Police receives a request in accordance

with section 107P, the Australian Federal Police must give the

carrier to which the request relates a written notice (a foreign

preservation notice) requiring the carrier to preserve, while the

notice is in force, all stored communications that:

(a) relate to the person or telecommunications service specified

in the notice; and

(b) the carrier holds at any time during the period that starts at

the time the carrier receives the notice and ends at the end of

the day the carrier receives the notice.

(2) In the notice, the Australian Federal Police can only specify:

(a) one person; or

(b) one or more telecommunications services; or

107P Condition for giving a foreign preservation notice

(1) If, under paragraph 15B(d) of the Mutual Assistance in Criminal

Matters Act 1987, a foreign country intends to request the

Attorney-General to arrange for access to stored communications

that:

(a) relate to a specified person or specified telecommunications

service; and

(b) are held by a carrier; and

relating to a criminal matter involving a serious foreign

contravention;

then the foreign country may request the Australian Federal Police

to arrange for the preservation of those stored communications.

(2) The request to the Australian Federal Police must:

(a) be in writing; and

Schedule 1 Preservation regime for stored communications

14 Cybercrime Legislation Amendment Bill 2011 No. , 2011

(b) specify the name of the authority concerned with the criminal

matter; and

the investigation or investigative proceeding; and

(d) specify information identifying the stored communications to

be preserved and the relationship between those

communications and the serious foreign contravention; and

(e) specify any information the foreign country has that

identifies the carrier that holds the stored communications;

and

(f) if the stored communications relate to a specified person--

specify any information the foreign country has that

identifies the telecommunications service to which the stored

communications relate; and

(g) specify the reasons why the stored communications need to

be preserved; and

(h) specify that the foreign country intends to make a request

under paragraph 15B(d) of the Mutual Assistance in Criminal

Matters Act 1987 to access the stored communications.

107Q When a foreign preservation notice is in force

A foreign preservation notice:

(a) comes into force when the carrier receives it; and

(b) ceases to be in force at the earlier of the following times:

(i) if the notice is revoked under section 107R--when the

carrier receives notice of the revocation;

(ii) if a stored communications warrant authorising access

to the stored communications covered by the notice is

issued after the Attorney-General has given an

authorisation in relation to the warrant under

section 15B of the Mutual Assistance in Criminal

Matters Act 1987--when the warrant ceases to be in

force.

107R Revoking a foreign preservation notice

(1)

If:

Preservation regime for stored communications Schedule 1

Cybercrime Legislation Amendment Bill 2011 No. , 2011 15

(a) a foreign country makes a request under section 107P to

preserve stored communications that are held by a carrier;

and

(b) in response to the request, the Australian Federal Police gives

a foreign preservation notice to the carrier in relation to those

stored communications under subsection 107N(1); and

was given the notice, the foreign country did not make a

request to the Attorney-General under paragraph 15B(d) of

the Mutual Assistance in Criminal Matters Act 1987 to

arrange for access to those communications;

then the Australian Federal Police must, by the third working day

after the end of that period, revoke the preservation notice by

giving the carrier to whom it was given written notice of the

revocation.

(2)

If:

(a) a foreign country makes a request under section 107P to

preserve stored communications that are held by a carrier;

and

(b) in response to the request, the Australian Federal Police gives

a foreign preservation notice to the carrier in relation to those

stored communications under subsection 107N(1); and

under paragraph 15B(d) of the Mutual Assistance in Criminal

Matters Act 1987 to arrange for access to those

communications; and

(d) the Attorney-General refuses that request;

then the Australian Federal Police must, by the third working day

after it is notified of the refusal, revoke the preservation notice by

giving the carrier to whom it was given written notice of the

revocation.

(3)

If:

(a) a foreign country makes a request under section 107P to

preserve stored communications that are held by a carrier;

and

(b) in response to the request, the Australian Federal Police gives

a foreign preservation notice to the carrier in relation to those

stored communications under subsection 107N(1); and

Schedule 1 Preservation regime for stored communications

16 Cybercrime Legislation Amendment Bill 2011 No. , 2011

then the Australian Federal Police must, by the third working day

after it is notified of the withdrawal, revoke the preservation notice

by giving the carrier to whom it was given written notice of the

revocation.

107S Persons who act on the AFP's behalf

A foreign preservation notice must be given or revoked on behalf

of the Australian Federal Police by an authorised officer of the

Australian Federal Police.

Division 4--Provisions relating to preservation notices

107T Evidentiary certificates relating to actions by carriers

(1)

The

following:

(a) the Managing Director of a carrier or a body corporate of

which the carrier is a subsidiary;

(b) the secretary of a carrier or a body corporate of which the

carrier is a subsidiary;

purposes of this paragraph by a person referred to in

paragraph (a) or (b);

may issue a written certificate signed by him or her setting out such

facts as he or she considers relevant with respect to acts or things

done by, or in relation to, employees of the carrier in order to

comply with a preservation notice.

(2) A document purporting to be a certificate issued under

subsection (1) and purporting to be signed by a person referred to

in paragraph (a), (b) or (c) of that subsection:

(a) is to be received in evidence in an exempt proceeding

without further proof; and

(b) in an exempt proceeding, is conclusive evidence of the

matters stated in the document.

Preservation regime for stored communications Schedule 1

Cybercrime Legislation Amendment Bill 2011 No. , 2011 17

(3) For the purposes of this section, the question whether a body

corporate is a subsidiary of another body corporate is to be

determined in the same manner as the question is determined under

the Corporations Act 2001.

107U Evidentiary certificates relating to actions by issuing agencies

(1) A certifying official of an issuing agency may issue a written

certificate signed by him or her setting out such facts as he or she

considers relevant with respect to anything done by an officer or

staff member of the agency in connection with a preservation

notice.

(2) A document purporting to be a certificate issued under this section

by a certifying official of an issuing agency and purporting to be

signed by him or her:

(a) is to be received in evidence in an exempt proceeding

without further proof; and

(b) in an exempt proceeding, is prima facie evidence of the

matters stated in the document.

107V Certified copies of preservation notices

A document certified in writing by a certifying official of an

issuing agency to be a true copy of a preservation notice is to be

received in evidence in an exempt proceeding as if it were the

original preservation notice.

107W How notices are to be given to carriers

For the purposes of this Part:

(a) a preservation notice; or

(b) a revocation notice under section 107L or 107R;

may only be given to a carrier by giving it to an authorised

representative of the carrier.

19 Before subparagraph 108(2)(f)(i)

Insert:

(ia) preservation notices; or

20 Division 1 of Part 3-4 (heading)

Schedule 1 Preservation regime for stored communications

18 Cybercrime Legislation Amendment Bill 2011 No. , 2011

Repeal the heading, substitute:

Division 1--Prohibition on dealing with accessed

information etc.

21 After subparagraph 133(1)(b)(ii)

Insert:

(iia) preservation notice information; or

Note:

The heading to section 133 is altered by omitting "or stored communications warrant

information" and substituting "etc.".

22 Section 134

Repeal the section, substitute:

134 Dealing in preservation notice information or stored

communications warrant information

A person may, for the purposes of Part 3-1A, 3-2, 3-3, 3-5 or 3-6:

(a) communicate preservation notice information or stored

communications warrant information to another person; or

(b) make use of preservation notice information or stored

communications warrant information; or

(d) give preservation notice information or stored

communications warrant information in evidence in a

proceeding.

23 After subsection 135(4)

Insert:

Preservation notice information

(4A) An employee of a carrier may, in the performance of his or her

duties as such an employee, communicate or make use of, or cause

to be communicated, preservation notice information if:

(a) the employee does so in the performance of his or her duties

as such an employee; and

(b) the information is reasonably necessary to enable the carrier

to comply with the preservation notice.

Preservation regime for stored communications Schedule 1

Cybercrime Legislation Amendment Bill 2011 No. , 2011 19

(4B) An employee of a carrier may communicate or cause to be

communicated to another carrier, or to an employee of another

carrier, preservation notice information if the information is

reasonably necessary to enable the carrier to comply with the

preservation notice.

24 After paragraphs 136(1)(a), 137(1)(a), 138(1)(a), 138(2)(a)

and 139(1)(a)

Insert:

(aa) preservation notice information;

25 Subsection 146(2)

After "give", insert "preservation notice information or".

26 Part 3-5 (heading)

Repeal the heading, substitute:

Part 3-5--Keeping and inspection of preservation

notice and access records

27 Division 1 of Part 3-5 (heading)

Repeal the heading, substitute:

Division 1--Keeping preservation notice and access

records

28 Before section 151

Insert into Division 1 of Part 3-5:

150A Enforcement agencies to keep documents connected with

giving preservation notices

The chief officer of an enforcement agency must cause to be kept

in the agency's records:

(a) each preservation notice given by the agency; and

(b) each instrument revoking such a notice; and

a certifying officer of the agency.

Schedule 1 Preservation regime for stored communications

20 Cybercrime Legislation Amendment Bill 2011 No. , 2011

29 Division 2 of Part 3-5 (heading)

Repeal the heading, substitute:

Division 2--Inspection of preservation notice and access

records by Ombudsman

30 Paragraph 152(a)

After "150", insert ", 150A".

31 Subsection 153(3)

After "150", insert ", 150A".

32 At the end of Part 3-5

Add:

Division 3--Inspection of preservation notice records by

Inspector-General of Intelligence and Security

158A Functions of the Inspector-General of Intelligence and

Security

(1)

Under

the

Inspector-General of Intelligence and Security Act 1986,

the Inspector-General of Intelligence and Security has functions in

relation to preservation notices given by the Organisation.

(2) In particular, the Inspector-General of Intelligence and Security has

the function of:

(a) inquiring into any matter that relates to compliance by the

Organisation with this Act (see subparagraph 8(1)(a)(i) of

that Act); and

(b) conducting such inspections of the Organisation as the

Inspector-General considers appropriate for the purpose of

giving effect to the objects of that Act (see section 9A of that

Act).

33 After section 161

Insert:

Preservation regime for stored communications Schedule 1

Cybercrime Legislation Amendment Bill 2011 No. , 2011 21

161A Report to contain information about preservation notices

Domestic preservation notices

(1) The report must set out, for each enforcement agency:

(a) the relevant statistics about domestic preservation notices that

were given by the agency during that year; and

(b) the relevant statistics about revocation notices given by the

agency under section 107L during that year.

Foreign preservation notices

(2) If the enforcement agency is the Australian Federal Police, the

report must also set out:

(a) the relevant statistics about foreign preservation notices that

were given by the agency during that year; and

(b) the relevant statistics about revocation notices given by the

agency under section 107R during that year.

Schedule 2 Amendments relating to Mutual Assistance

Part 1 Stored communications

22 Cybercrime Legislation Amendment Bill 2011 No. , 2011

Schedule 2--Amendments relating to Mutual

Assistance

Part 1--Stored communications

Mutual Assistance in Criminal Matters Act 1987

1 Subsection 3(1)

Insert:

carrier has the same meaning as in the Telecommunications

(Interception and Access) Act 1979.

2 Subsection 3(1)

Insert:

investigative proceeding means a proceeding covered by

paragraph (a) or (b) of the definition of proceeding.

3 Subsection 3(1)

Insert:

stored communication has the same meaning as in the

Telecommunications (Interception and Access) Act 1979.

4 After Part III

Insert:

Part IIIA--Assistance in relation to stored

communications

15B Requests by foreign countries for stored communications

The Attorney-General may, in his or her discretion, authorise the

Australian Federal Police or a police force or police service of a

State, in writing, to apply for a stored communications warrant

under section 110 of the Telecommunications (Interception and

Access) Act 1979 if the Attorney-General is satisfied that:

Amendments relating to Mutual Assistance Schedule 2

Stored communications Part 1

Cybercrime Legislation Amendment Bill 2011 No. , 2011 23

(a) an investigation, or investigative proceeding, relating to a

criminal matter involving an offence against the law of a

foreign country (the requesting country) has commenced in

the requesting country; and

(b) the offence to which the investigation, or investigative

proceeding, relates is punishable by a maximum penalty of:

(i) imprisonment for 3 years or more, imprisonment for life

or the death penalty; or

(ii) a fine of an amount that is at least equivalent to 900

penalty units; and

communications relevant to the investigation, or investigative

proceeding, are held by a carrier; and

(d) the requesting country has requested the Attorney-General to

arrange for access to the stored communications.

Note:

Information obtained under the warrant may only be communicated to

the requesting country on certain conditions: see subsection 142A(1)

of the Telecommunications (Interception and Access) Act 1979.

Telecommunications (Interception and Access) Act 1979

5 Subsection 5(1)

Insert:

investigative proceeding has the same meaning as in the Mutual

Assistance in Criminal Matters Act 1987.

6 Subsection 5(1)

Insert:

mutual assistance application means an application for a stored

communications warrant made as a result of an authorisation under

section 15B of the Mutual Assistance in Criminal Matters Act

1987.

7 After section 5E

Insert:

Schedule 2 Amendments relating to Mutual Assistance

Part 1 Stored communications

24 Cybercrime Legislation Amendment Bill 2011 No. , 2011

5EA Serious foreign contraventions

For the purposes of this Act, a serious foreign contravention is a

contravention of a law of a foreign country that is punishable by a

maximum penalty of:

(a) imprisonment for 3 years or more, imprisonment for life or

the death penalty; or

(b) a fine of an amount that is at least equivalent to 900 penalty

units.

8 Paragraph 6H(c)

Omit "paragraph 116(1)(d)", substitute "subparagraph 116(1)(d)(i) or

(ii), as the case requires".

9 Paragraph 116(1)(d)

Omit all the words after "with", substitute:

: (i) in the case of an application other than a mutual

assistance application--the investigation by the agency

of a serious contravention in which the person is

involved (including as a victim of the serious

contravention); or

(ii) in the case of a mutual assistance application--the

investigation or investigative proceeding, by the foreign

country to which the application relates, of a serious

foreign contravention to which the application relates

and in which the person is involved (including as a

victim of the serious foreign contravention); and

10 Paragraph 116(1)(e)

After "subsection (2)", insert "or (2A) (as the case requires)".

11 Subsection 116(2)

Omit "The matters", substitute "In the case of an application other than

a mutual assistance application, the matters".

12 Paragraph 116(2)(c)

Omit "paragraph (1)(d)", substitute "subparagraph (1)(d)(i)".

13 After subsection 116(2)

Insert:

Amendments relating to Mutual Assistance Schedule 2

Stored communications Part 1

Cybercrime Legislation Amendment Bill 2011 No. , 2011 25

(2A) In the case of a mutual assistance application, the matters to which

the issuing authority must have regard are:

(a) 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; and

(b) the gravity of the conduct constituting the serious foreign

contravention; and

subparagraph (1)(d)(ii) would be likely to assist in

connection with the investigation, to the extent that this is

possible to determine from information obtained from the

foreign country to which the application relates.

14 Subsection 116(3)

After "contravention", insert "or serious foreign contravention, but

cannot relate to both a serious contravention and a serious foreign

contravention".

15 Subsection 118(3)

After "contravention", insert "or serious foreign contravention".

16 Subsection 118(3)

Omit "paragraph 116(1)(d)", substitute "subparagraph 116(1)(d)(i) or

(ii), as the case may be".

17 Subsection 139(1)

After "(2)", insert "or (4A)".

18 Subsection 139(2)

Omit "The", substitute "In 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, the".

19 After subsection 139(4)

Insert:

(4A) In the case of information obtained by the agency through the

execution of a warrant issued as a result of a mutual assistance

application, the purposes are purposes connected with:

Schedule 2 Amendments relating to Mutual Assistance

Part 1 Stored communications

26 Cybercrime Legislation Amendment Bill 2011 No. , 2011

(a) providing the information to the foreign country, or an

appropriate authority of the foreign country, to which the

application relates; or

(b) the keeping of records by the agency under Part 3-5.

20 After section 142

Insert:

142A Communicating information obtained as a result of a mutual

assistance application to foreign country

(1) Despite subsection 139(4A) and section 142, a person may only

communicate information, obtained through the execution of a

warrant issued as a result of a mutual assistance application, to the

foreign country to which the application relates, subject to the

following conditions:

(a) that the information will only be used for the purposes for

which the foreign country requested the information;

(b) that any document or other thing containing the information

will be destroyed when it is no longer required for those

purposes;

Attorney-General.

(2) A determination made under paragraph (1)(c) is not a legislative

instrument.

21 At the end of subsection 162(1)

Add:

; and (c) the relevant statistics about mutual assistance applications

that the agency made during that year; and

(d) for each offence (the foreign offence) against a law of a

foreign country in respect of which a stored communications

warrant was issued as a result of a mutual assistance

application made by the agency during the year--the offence

(if any), under a law of the Commonwealth, or of a State or a

Territory, that is of the same nature as, or a substantially

similar nature to, the foreign offence.

22 After paragraph 162(2)(b)

Amendments relating to Mutual Assistance Schedule 2

Stored communications Part 1

Cybercrime Legislation Amendment Bill 2011 No. , 2011 27

Insert:

(ba) the relevant statistics about mutual assistance applications

that were made during that year; and

23 At the end of subsection 162(2)

Add:

; and (e) for each offence (the foreign offence) against a law of a

foreign country in respect of which a stored communications

warrant was issued as a result of a mutual assistance

application made during the year--the offence (if any), under

a law of the Commonwealth, or of a State or a Territory, that

is of the same nature as, or a substantially similar nature to,

the foreign offence.

24 Application of amendments made by this Part

The amendments made by this Part apply in relation to a request by a

foreign country that is under consideration on or after the

commencement of this item, whether the request was made before or

after that commencement.

Schedule 2 Amendments relating to Mutual Assistance

Part 2 Telecommunications data

28 Cybercrime Legislation Amendment Bill 2011 No. , 2011

Part 2--Telecommunications data

Mutual Assistance in Criminal Matters Act 1987

25 Subsection 3(1)

Insert:

communication has the same meaning as in the

Telecommunications (Interception and Access) Act 1979.

26 Subsection 3(1)

Insert:

telecommunications system has the same meaning as in the

Telecommunications (Interception and Access) Act 1979.

27 Before Part IV

Insert:

Part IIIB--Assistance in relation to

telecommunications data

15D Requests by foreign countries for telecommunications data

(1) This section applies if:

(a) a foreign country requests the disclosure of specified

information or specified documents that come into existence

during a specified period; and

(b) the information or documents relate to the fact of a

communication passing over a telecommunications system.

(2) To avoid doubt, information or documents do not relate to the fact

of a communication passing over a telecommunications system:

(a) if the information is the contents or substance of a

communication; or

(b) to the extent that the documents contain the contents or

substance of a communication.

Amendments relating to Mutual Assistance Schedule 2

Telecommunications data Part 2

Cybercrime Legislation Amendment Bill 2011 No. , 2011 29

(3) The Attorney-General may authorise the making of an

authorisation under section 180B of the Telecommunications

(Interception and Access) Act 1979, of a disclosure of information

or documents to which this section applies, if he or she is satisfied

that:

(a) an investigation relating to a criminal matter involving an

offence against the law of the foreign country has

commenced in that country; and

(b) the offence is punishable by imprisonment for 3 years or

more, imprisonment for life or the death penalty.

Telecommunications Act 1997

28 Subsection 305(1)

After "Division 4", insert "or 4A".

29 Subparagraph 306(1)(b)(ii)

Omit "or subsection 180(3)", substitute ", subsection 180(3) or

section 180A".

30 Paragraph 306A(1)(b)

After "section 180", insert "or 180B".

31 Paragraph 306A(1)(b)

After "subsection 180(2)", insert "or 180B(2)".

Telecommunications (Interception and Access) Act 1979

32 Subsection 5(1) (definition of authorised officer)

Repeal the definition, substitute:

authorised officer:

(a) in sections 180A, 180B, 180C and 180D, subsections 184(5)

and 185(2) and paragraph 186(1)(ca), means:

(i) the Commissioner of Police; or

(ii) a Deputy Commissioner of Police; or

(iii) a member of the Australian Federal Police who is

covered by an authorisation in force under subsection

5AB(1A); and

Schedule 2 Amendments relating to Mutual Assistance

Part 2 Telecommunications data

30 Cybercrime Legislation Amendment Bill 2011 No. , 2011

(b) in any other case, means:

(i) the head (however described) of the enforcement agency

or a person acting as that head; or

(ii) a deputy head (however described) of the enforcement

agency or a person acting as that deputy head; or

(iii) a person who holds, or is acting in, an office or position

in the enforcement agency that is covered by an

authorisation in force under subsection 5AB(1).

33 Subsection 5(1)

Insert:

foreign law enforcement agency means:

(a) a police force (however described) of a foreign country; or

(b) any other authority or person responsible for the enforcement

of the laws of the foreign country.

34 Subsection 5AB(1)

Omit "paragraph (c)", substitute "subparagraph (b)(iii)".

Note:

The following heading to subsection 5AB(1) is inserted "Authorised officers of an

enforcement agency".

35 Subsection 5AB(2)

Repeal the subsection, substitute:

Authorised officers of the Australian Federal Police

(1A) The Commissioner of Police may authorise, in writing, a senior

executive AFP employee who is a member of the Australian

Federal Police to be an authorised officer.

(2) A copy of an authorisation must be given to the Communications

Access Coordinator:

(a) in the case of an authorisation made under subsection (1)--

by the head of the enforcement agency; and

(b) in the case of an authorisation made under subsection (1A)--

by the Commissioner of Police.

36 Subsection 171(1)

Omit "and 4", substitute ", 4 and 4A".

Amendments relating to Mutual Assistance Schedule 2

Telecommunications data Part 2

Cybercrime Legislation Amendment Bill 2011 No. , 2011 31

37 Subsection 171(1) (note 1)

Repeal the note, substitute:

Note 1:

Division 3 covers the Organisation. Division 4 covers disclosures for

the purposes of Australian enforcement agencies. Division 4A covers

disclosures for the purposes of foreign law enforcement.

38 At the end of subsection 171(3)

Add "or 4A".

39 Section 172

Omit "and 4", substitute ", 4 and 4A".

40 Subsection 180(5)

Repeal the subsection.

41 After Division 4 of Part 4-1

Insert:

Division 4A--Foreign law enforcement

Subdivision A--Primary disclosures

180A Authorisations for access to existing information or

documents--enforcement of the criminal law of a foreign

country

Disclosure to the Australian Federal Police

(1) Sections 276, 277 and 278 of the Telecommunications Act 1997 do

not prevent a disclosure of information or a document if the

information or document is covered by an authorisation in force

under subsection (2).

(2) An authorised officer of the Australian Federal Police 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.

Note:

Section 184 deals with notification of authorisations.

Schedule 2 Amendments relating to Mutual Assistance

Part 2 Telecommunications data

32 Cybercrime Legislation Amendment Bill 2011 No. , 2011

(3) The authorised officer must not make the authorisation unless he or

she is satisfied that the disclosure is reasonably necessary for the

enforcement of the criminal law of a foreign country.

Disclosure to a foreign law enforcement agency

(4) If specified information or specified documents are disclosed

because of an authorisation given under subsection (2), an

authorised officer of the Australian Federal Police may authorise

the disclosure of the information or documents so disclosed to a

foreign law enforcement agency.

(5) The authorised officer must not make the authorisation unless he or

she is satisfied that:

(a) the disclosure is reasonably necessary for the enforcement of

the criminal law of a foreign country; and

(b) the disclosure is appropriate in all the circumstances.

180B Authorisations for access to prospective information or

documents--enforcement of the criminal law of a foreign

country

Disclosure to the Australian Federal Police

(1) Sections 276, 277 and 278 of the Telecommunications Act 1997 do

not prevent a disclosure of information or a document if the

information or document is covered by an authorisation in force

under subsection (2) of this section.

Prospective authorisation

(2) An authorised officer of the Australian Federal Police may

authorise the disclosure of specified information or specified

documents that come into existence during the period for which the

authorisation is in force.

(3) The authorised officer must not make the authorisation unless:

(a) the Attorney-General has authorised the making of the

authorisation under the Mutual Assistance in Criminal

Matters Act 1987; and

(b) the authorised officer is satisfied that the disclosure is:

Amendments relating to Mutual Assistance Schedule 2

Telecommunications data Part 2

Cybercrime Legislation Amendment Bill 2011 No. , 2011 33

(i) reasonably necessary for the investigation of an offence

against a law of a foreign country that is punishable by

imprisonment for 3 years or more, imprisonment for life

or the death penalty; and

(ii) appropriate in all the circumstances.

(4) An authorised officer of the Australian Federal Police must revoke

the authorisation if he or she is satisfied that the disclosure is no

longer required.

Note:

Section 184 deals with notification of revocations.

(5) An authorisation under subsection (2):

(a) comes into force at the time the person from whom the

disclosure is sought receives notification of the authorisation;

and

(b) ceases to be in force at the time specified in the authorisation,

which must not be more than 21 days after the day the

authorisation is made, or that period as extended under

subsection (6), unless it is revoked earlier.

Note:

Section 184 deals with notification of authorisations.

Extension of prospective authorisation

(6) The period for which an authorisation under subsection (2) is in

force may be extended once only, by an authorised officer of the

Australian Federal Police, if the authorised officer is satisfied that

the extension is:

(a) reasonably necessary for the investigation of an offence

against a law of a foreign country that is punishable by

imprisonment for 3 years or more, imprisonment for life or

the death penalty; and

(b) appropriate in all the circumstances.

(7) An extension under subsection (6) must not be for more than 21

days from the day of the extension.

Disclosure to a foreign law enforcement agency

(8) If specified information or specified documents are disclosed

because of an authorisation given under subsection (2), an

authorised officer of the Australian Federal Police may authorise

the disclosure of the information or documents so disclosed to a

Schedule 2 Amendments relating to Mutual Assistance

Part 2 Telecommunications data

34 Cybercrime Legislation Amendment Bill 2011 No. , 2011

foreign law enforcement agency if the authorised officer is

satisfied that the disclosure is:

(a) reasonably necessary for the investigation of an offence

against a law of a foreign country that is punishable by

imprisonment for 3 years or more, imprisonment for life or

the death penalty; and

(b) appropriate in all the circumstances.

(9) An authorised officer must not make more than one authorisation a

day under subsection (8).

Subdivision B--Secondary disclosures

180C Authorisations to disclose information or documents--

enforcement of the criminal law of a foreign country

(1) If specified information or specified documents are disclosed

because of an authorisation given under Division 4, other than

because of an authorisation under section 178A (missing persons),

an authorised officer of the Australian Federal Police may

authorise the disclosure of the information or documents so

disclosed to a foreign law enforcement agency.

(2) The authorised officer must not make the authorisation unless he or

she is satisfied that:

(a) the disclosure is reasonably necessary for the enforcement of

the criminal law of a foreign country; and

(b) the disclosure is appropriate in all the circumstances.

180D Authorisations to disclose information or documents--

enforcement of the criminal law

(1) If specified information or specified documents are disclosed

because of an authorisation given under this Division, an

authorised officer of the Australian Federal Police may authorise

the following:

(a) the disclosure of the information or documents to the

Organisation or an enforcement agency;

(b) the use of the information or documents by the Australian

Federal Police.

Amendments relating to Mutual Assistance Schedule 2

Telecommunications data Part 2

Cybercrime Legislation Amendment Bill 2011 No. , 2011 35

(2) The authorised officer must not make the authorisation unless he or

she is satisfied that:

(a) in the case of a disclosure to the Organisation--the disclosure

is reasonably necessary for the performance by the

Organisation of its functions; and

(b) in the case of a disclosure to an enforcement agency--the

disclosure is reasonably necessary:

(i) for the enforcement of the criminal law; or

(ii) for the enforcement of a law imposing a pecuniary

penalty; or

(iii) for the protection of the public revenue; and

is reasonably necessary:

(i) for the enforcement of the criminal law; or

(ii) for the enforcement of a law imposing a pecuniary

penalty; or

(iii) for the protection of the public revenue; and

(d) in any case--the disclosure or use is appropriate in all the

circumstances.

Subdivision C--Conditions of disclosure to foreign country

180E Disclosing information etc. obtained to foreign country

(1) A person must not disclose information or a document in

accordance with an authorisation under section 180A, 180B or

180C to a foreign country unless the disclosure is subject to the

following conditions:

(a) that the information will only be used for the purposes for

which the foreign country requested the information;

(b) that any document or other thing containing the information

will be destroyed when it is no longer required for those

purposes;

section 180B--any other condition determined, in writing, by

the Attorney-General.

(2) A determination made under paragraph (1)(c) is not a legislative

instrument.

Schedule 2 Amendments relating to Mutual Assistance

Part 2 Telecommunications data

36 Cybercrime Legislation Amendment Bill 2011 No. , 2011

Division 4B--Privacy to be considered when making

authorisations

180F Authorised officers to consider privacy

Before making an authorisation under Division 4 or 4A in relation

to the disclosure or use of information or documents, the

authorised officer considering making the authorisation must have

regard to how much the privacy of any person or persons would be

likely to be interfered with by the disclosure or use.

42 Paragraph 181(b)

Omit "or 4", substitute ", 4 or 4A".

43 Paragraph 182(1)(a)

After "Division 4", insert "or 4A".

44 After subsection 182(4)

Insert:

(4A) Paragraph (1)(b) does not apply to a disclosure or use of

information or a document if the disclosure or use is permitted by

section 180C or 180D.

Note:

A defendant bears an evidential burden in relation to the matter in

subsection (4A) (see subsection 13.3(3) of the Criminal Code).

45 Subsection 182(5) (definition of non-missing person

information)

After "Division 4", insert "or 4A".

46 Paragraph 183(1)(a)

Omit "or 4", substitute ", 4 or 4A".

47 At the end of section 184

Add:

Authorised officers of the Australian Federal Police

(5) If an authorised officer of the Australian Federal Police makes an

authorisation under subsection 180A(2) or 180B(2), or extends the

Amendments relating to Mutual Assistance Schedule 2

Telecommunications data Part 2

Cybercrime Legislation Amendment Bill 2011 No. , 2011 37

period for which an authorisation is in force under subsection

180B(6), a relevant staff member of the Australian Federal Police

must notify the person from whom the disclosure is sought.

(6) If, under subsection 180B(4), an authorised officer of the

Australian Federal Police revokes an authorisation, a relevant staff

member of the Australian Federal Police must notify the person

who was notified of the authorisation.

48 Section 185

Before "The", insert "(1)".

49 At the end of section 185

Add:

(2) The Commissioner of Police must retain an authorisation made

under Division 4A of Part 4-1 by an authorised officer of the

Australian Federal Police for the period of 3 years beginning on the

day the authorisation is made.

50 After paragraph 186(1)(c)

Insert:

(ca) if the enforcement agency is the Australian Federal Police--

the number of authorisations made under sections 180A,

180B, 180C and 180D by an authorised officer of the

Australian Federal Police during that year; and

51 Application of amendments made by this Part--

authorisations

(1)

The amendments made by this Part apply in relation to an authorisation

made on or after the commencement of this item.

(2)

To avoid doubt, an authorisation may be made under section 180C of

the Telecommunications (Interception and Access) Act 1979 even if an

authorisation given under Division 4 (as mentioned in that section) was

given before the commencement of this item.

52 Application of amendments made by this Part--requests

by foreign countries

Schedule 2 Amendments relating to Mutual Assistance

Part 2 Telecommunications data

38 Cybercrime Legislation Amendment Bill 2011 No. , 2011

The amendments made by this Part apply in relation to a request by a

foreign country that is under consideration on or after the

commencement of this item, whether the request was made before or

after that commencement.

53 Saving of existing authorisations

(1)

Despite the amendment of subsection 5AB(1) of the

Telecommunications (Interception and Access) Act 1979 by this Part,

any authorisation by the head of an enforcement agency that was in

force under that subsection immediately before the commencement of

this item continues in force on and after that commencement as if it

were an authorisation made under that subsection as in force after that

commencement.

(2)

In this item:

enforcement agency has the same meaning as in the

Telecommunications (Interception and Access) Act 1979.

Amendments relating to Mutual Assistance Schedule 2

Recovery of costs by carriage service providers etc. for providing assistance to

Australian law enforcement authorities Part 3

Cybercrime Legislation Amendment Bill 2011 No. , 2011 39

Part 3--Recovery of costs by carriage service

providers etc. for providing assistance to

Australian law enforcement authorities

Telecommunications Act 1997

54 After paragraph 313(3)(c)

Insert:

(ca) assisting the enforcement of the criminal laws in force in a

foreign country;

55 After paragraph 313(4)(c)

Insert:

(ca) assisting the enforcement of the criminal laws in force in a

foreign country;

56 Application of amendments made by items 54 and 55

(1)

The amendment made by item 54 of this Schedule applies to help given

by a carrier or carriage service provider on or after the commencement

of this item.

(2)

The amendment made by item 55 of this Schedule applies to help given

by a carriage service intermediary on or after the commencement of this

item.

Schedule 3 Computer offences amendments

40 Cybercrime Legislation Amendment Bill 2011 No. , 2011

Schedule 3--Computer offences amendments

Criminal Code Act 1995

1 Subsection 476.1(1) of the Criminal Code (definition of

Commonwealth computer)

Repeal the definition.

2 Paragraph 477.1(1)(b) of the Criminal Code

Repeal the paragraph.

3 Subsection 477.1(2) of the Criminal Code

Repeal the subsection.

4 Subsections 477.1(4) and (5) of the Criminal Code

Repeal the subsections.

5 Subparagraph 477.2(1)(c)(ii) of the Criminal Code

Omit "data; and", substitute "data.".

6 Paragraph 477.2(1)(d) of the Criminal Code

Repeal the paragraph.

7 Subsection 477.2(2) of the Criminal Code

Repeal the subsection.

8 Paragraph 477.3(1)(b) of the Criminal Code

Omit "unauthorised; and", substitute "unauthorised.".

9 Paragraph 477.3(1)(c) of the Criminal Code

Repeal the paragraph.

10 Subsection 477.3(2) of the Criminal Code

Repeal the subsection.

11 Paragraph 478.1(1)(c) of the Criminal Code

Omit "unauthorised; and", substitute "unauthorised.".

Computer offences amendments Schedule 3

Cybercrime Legislation Amendment Bill 2011 No. , 2011 41

12 Paragraph 478.1(1)(d) of the Criminal Code

Repeal the paragraph.

13 Subsection 478.1(2) of the Criminal Code

Repeal the subsection.

14 Subsection 478.2(1) of the Criminal Code

Omit "(1)".

15 Paragraph 478.2(1)(c) of the Criminal Code

Omit "unauthorised; and", substitute "unauthorised.".

16 Paragraph 478.2(1)(d) of the Criminal Code

Repeal the paragraph.

17 Subsection 478.2(2) of the Criminal Code

Repeal the subsection.

18 Application of amendments

The amendments made by this Schedule apply to acts and omissions

that take place after the day on which this Schedule commences.

Schedule 4 Telecommunications data confidentiality

42 Cybercrime Legislation Amendment Bill 2011 No. , 2011

Schedule 4--Telecommunications data

confidentiality

Telecommunications (Interception and Access) Act 1979

1 Subsection 171(3)

Repeal the subsection, substitute:

(3) Division 6 creates offences for certain disclosures and uses of

information and documents.

2 Division 6 of Part 4-1 (heading)

Repeal the heading, substitute:

Division 6--Disclosure/use offences

3 Before section 182

Insert:

181A Disclosure/use offences: authorisations under Division 3

Disclosures

(1) A person commits an offence if:

(a) the person discloses information; and

(b) the information is about any of the following:

(i) whether an authorisation under Division 3 has been, or

is being, sought;

(ii) the making of such an authorisation;

(iii) the existence or non-existence of such an authorisation;

(iv) the revocation of such an authorisation;

(v) the notification of such a revocation.

Penalty: Imprisonment for 2 years.

(2) A person commits an offence if:

(a) the person discloses a document; and

Telecommunications data confidentiality Schedule 4

Cybercrime Legislation Amendment Bill 2011 No. , 2011 43

(b) the document consists (wholly or partly) of any of the

following:

(i) an authorisation under Division 3;

(ii) the revocation of such an authorisation;

(iii) the notification of such a revocation.

Penalty: Imprisonment for 2 years.

(3) Paragraphs (1)(a) and (2)(a) do not apply to a disclosure of

information or a document if:

(a) the disclosure is for the purposes of the authorisation,

revocation or notification concerned; or

(b) the disclosure is reasonably necessary:

(i) to enable the Organisation to perform its functions; or

(ii) to enforce the criminal law; or

(iii) to enforce a law imposing a pecuniary penalty; or

(iv) to protect the public revenue.

Note:

A defendant bears an evidential burden in relation to the matter in

subsection (3) (see subsection 13.3(3) of the Criminal Code).

Uses

(4) A person commits an offence if:

(a) the person uses information; and

(b) the information is about any of the following:

(i) whether an authorisation under Division 3 has been, or

is being, sought;

(ii) the making of such an authorisation;

(iii) the existence or non-existence of such an authorisation;

(iv) the revocation of such an authorisation;

(v) the notification of such a revocation.

Penalty: Imprisonment for 2 years.

(5) A person commits an offence if:

(a) the person uses a document; and

(b) the document consists (wholly or partly) of any of the

following:

(i) an authorisation under Division 3;

(ii) the revocation of such an authorisation;

Schedule 4 Telecommunications data confidentiality

44 Cybercrime Legislation Amendment Bill 2011 No. , 2011

(iii) the notification of such a revocation.

Penalty: Imprisonment for 2 years.

(6) Paragraphs (4)(a) and (5)(a) do not apply to a use of information or

a document if:

(a) the use is for the purposes of the authorisation, revocation or

notification concerned; or

(b) the use is reasonably necessary:

(i) to enable the Organisation to perform its functions; or

(ii) to enforce the criminal law; or

(iii) to enforce a law imposing a pecuniary penalty; or

(iv) to protect the public revenue.

Note:

A defendant bears an evidential burden in relation to the matter in

subsection (6) (see subsection 13.3(3) of the Criminal Code).

181B Disclosure/use offences: certain authorisations under

Division 4

Disclosures

(1) A person commits an offence if:

(a) the person discloses information; and

(b) the information is about any of the following:

(i) whether an authorisation under Division 4 (other than

under section 178A) has been, or is being, sought;

(ii) the making of such an authorisation;

(iii) the existence or non-existence of such an authorisation;

(iv) the revocation of such an authorisation;

(v) the notification of such a revocation.

Penalty: Imprisonment for 2 years.

(2) A person commits an offence if:

(a) the person discloses a document; and

(b) the document consists (wholly or partly) of any of the

following:

(i) an authorisation under Division 4 (other than under

section 178A);

(ii) the revocation of such an authorisation;

Telecommunications data confidentiality Schedule 4

Cybercrime Legislation Amendment Bill 2011 No. , 2011 45

(iii) the notification of such a revocation.

Penalty: Imprisonment for 2 years.

(3) Paragraphs (1)(a) and (2)(a) do not apply to a disclosure of

information or a document if:

(a) the disclosure is for the purposes of the authorisation,

revocation or notification concerned; or

(b) the disclosure is reasonably necessary:

(i) to enable the Organisation to perform its functions; or

(ii) to enforce the criminal law; or

(iii) to enforce a law imposing a pecuniary penalty; or

(iv) to protect the public revenue.

Note:

A defendant bears an evidential burden in relation to the matter in

subsection (3) (see subsection 13.3(3) of the Criminal Code).

Uses

(4) A person commits an offence if:

(a) the person uses information; and

(b) the information is about any of the following:

(i) whether an authorisation under Division 4 (other than

under section 178A) has been, or is being, sought;

(ii) the making of such an authorisation;

(iii) the existence or non-existence of such an authorisation;

(iv) the revocation of such an authorisation;

(v) the notification of such a revocation.

Penalty: Imprisonment for 2 years.

(5) A person commits an offence if:

(a) the person uses a document; and

(b) the document consists (wholly or partly) of any of the

following:

(i) an authorisation under Division 4 (other than under

section 178A);

(ii) the revocation of such an authorisation;

(iii) the notification of such a revocation.

Penalty: Imprisonment for 2 years.

Schedule 4 Telecommunications data confidentiality

46 Cybercrime Legislation Amendment Bill 2011 No. , 2011

(6) Paragraphs (4)(a) and (5)(a) do not apply to a use of information or

a document if:

(a) the use is for the purposes of the authorisation, revocation or

notification concerned; or

(b) the use is reasonably necessary:

(i) to enforce the criminal law; or

(ii) to enforce a law imposing a pecuniary penalty; or

(iii) to protect the public revenue.

Note:

A defendant bears an evidential burden in relation to the matter in

subsection (6) (see subsection 13.3(3) of the Criminal Code).

Note:

The heading to section 182 is altered by adding at the end ": disclosures under

Division 4".

4 Application

Sections 181A and 181B of the Telecommunications (Interception and

Access) Act 1979 apply in relation to a disclosure, or use, of information

or a document on or after the commencement of this Schedule whether

the information or document came into existence before, on or after that

commencement.

Miscellaneous Schedule 5

Cybercrime Legislation Amendment Bill 2011 No. , 2011 47

Schedule 5--Miscellaneous

Telecommunications (Interception and Access) Act 1979

1 At the end of section 105

Add:

(5) Section 15.1 (extended geographical jurisdiction--category A) of

the Criminal Code applies to an offence against subsection 7(1) or

section 63.

2 Application of amendment

The amendment made by item 1 of this Schedule applies to acts or

things done on or after the day on which this Schedule commences.

3 Subsection 180(4)

Omit all the words after "reasonably necessary", substitute:

for the investigation of:

(a) a serious offence; or

(b) an offence against a law of the Commonwealth, a State or a

Territory that is punishable by imprisonment for at least 3

years.

Commonwealth of Australia Bills

CYBERCRIME LEGISLATION AMENDMENT BILL 2011