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This is a Bill, not an Act. For current law, see the Acts databases.
2013-2014
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Telecommunications (Interception and
Access) Amendment (Data Retention)
Bill 2014
No. , 2014
(Attorney-General)
A Bill for an Act to amend the Telecommunications
(Interception and Access) Act 1979, and for related
purposes
No. , 2014
Telecommunications (Interception and Access) Amendment (Data
Retention) Bill 2014
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 2
Schedule 1--Data retention
3
Part 1--Main amendments
3
Telecommunications (Interception and Access) Act 1979
3
Part 2--Other amendments
16
Telecommunications Act 1997
16
Telecommunications (Interception and Access) Act 1979
16
Part 3--Application provisions
18
Schedule 2--Restricting access to stored communications and
telecommunications data
21
Part 1--Main amendments
21
Telecommunications (Interception and Access) Act 1979
21
Part 2--Other amendments
26
Telecommunications (Interception and Access) Act 1979
26
Part 3--Application provisions
32
Schedule 3--Oversight by the Commonwealth Ombudsman
35
Part 1--Amendments
35
Telecommunications (Interception and Access) Act 1979
35
Part 2--Application provisions
47
No. , 2014
Telecommunications (Interception and Access) Amendment (Data
Retention) Bill 2014
1
A Bill for an Act to amend the Telecommunications
1
(Interception and Access) Act 1979, and for related
2
purposes
3
The Parliament of Australia enacts:
4
1 Short title
5
This Act may be cited as the Telecommunications (Interception
6
and Access) Amendment (Data Retention) Act 2014.
7
2 Commencement
8
(1) Each provision of this Act specified in column 1 of the table
9
commences, or is taken to have commenced, in accordance with
10
column 2 of the table. Any other statement in column 2 has effect
11
according to its terms.
12
2
Telecommunications (Interception and Access) Amendment (Data
Retention) Bill 2014
No. , 2014
1
Commencement information
Column 1
Column 2
Column 3
Provisions
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. Schedule 1,
items 1 to 7
The day after the end of the period of 6
months beginning on the day this Act
receives the Royal Assent.
3. Schedule 1,
items 8 to 11
The day this Act receives the Royal Assent.
4. Schedules 2
and 3
The day after the end of the period of 6
months beginning on the day this Act
receives the Royal Assent.
Note:
This table relates only to the provisions of this Act as originally
2
enacted. It will not be amended to deal with any later amendments of
3
this Act.
4
(2) Any information in column 3 of the table is not part of this Act.
5
Information may be inserted in this column, or information in it
6
may be edited, in any published version of this Act.
7
3 Schedules
8
Legislation that is specified in a Schedule to this Act is amended or
9
repealed as set out in the applicable items in the Schedule
10
concerned, and any other item in a Schedule to this Act has effect
11
according to its terms.
12
Data retention Schedule 1
Main amendments Part 1
No. , 2014
Telecommunications (Interception and Access) Amendment (Data
Retention) Bill 2014
3
Schedule 1
--Data retention
1
Part 1
--Main amendments
2
Telecommunications (Interception and Access) Act 1979
3
1 After Part 5-1
4
Insert:
5
Part 5-1A--Data retention
6
Division 1--Obligation to keep information and documents
7
187A Service providers must keep certain information and
8
documents
9
(1) A person (a service provider) who operates a service to which this
10
Part applies (a relevant service) must keep, or cause to be kept, for
11
the period specified in section 187C:
12
(a) information of a kind prescribed by the regulations; or
13
(b) documents containing information of that kind;
14
relating to any communication carried by means of the service.
15
Note 1:
Subsection (3) sets out the services to which this Part applies.
16
Note 2:
Section 187B removes some service providers from the scope of this
17
obligation, either completely or in relation to some services they
18
operate.
19
Note 3:
Division 3 provides for exemptions from a service provider's
20
obligations under this Part.
21
(2) The kinds of information prescribed for the purposes of
22
paragraph (1)(a) must relate to one or more of the following
23
matters:
24
(a) characteristics of any of the following:
25
(i) the subscriber of a relevant service;
26
(ii) an account relating to a relevant service;
27
(iii) a telecommunications device relating to a relevant
28
service;
29
Schedule 1 Data retention
Part 1 Main amendments
4
Telecommunications (Interception and Access) Amendment (Data
Retention) Bill 2014
No. , 2014
(iv) another relevant service relating to a relevant service;
1
(b) the source of a communication;
2
(c) the destination of a communication;
3
(d) the date, time and duration of a communication, or of its
4
connection to a relevant service;
5
(e) the type of a communication, or a type of relevant service
6
used in connection with a communication;
7
(f) the location of equipment, or a line, used in connection with a
8
communication.
9
(3) This Part applies to a service if:
10
(a) it is a service for carrying communications, or enabling
11
communications to be carried, by means of guided or
12
unguided electromagnetic energy or both; and
13
(b) it is a service:
14
(i) operated by a carrier; or
15
(ii) operated by an internet service provider (within the
16
meaning of Schedule 5 to the Broadcasting Services Act
17
1992); or
18
(iii) of a kind prescribed by the regulations; and
19
(c) the person operating the service owns or operates, in
20
Australia, infrastructure that enables the provision of any of
21
its relevant services;
22
but does not apply to a broadcasting service (within the meaning of
23
the Broadcasting Services Act 1992).
24
(4) This section does not require a service provider to keep, or cause to
25
be kept:
26
(a) information that is the contents or substance of a
27
communication; or
28
Note:
This paragraph puts beyond doubt that service providers are not
29
required to keep information about telecommunications content.
30
(b) information that:
31
(i) states an address to which a communication was sent on
32
the internet, from a telecommunications device, using
33
an internet access service provided by the service
34
provider; and
35
Data retention Schedule 1
Main amendments Part 1
No. , 2014
Telecommunications (Interception and Access) Amendment (Data
Retention) Bill 2014
5
(ii) was obtained by the service provider only as a result of
1
providing the service; or
2
Note:
This paragraph puts beyond doubt that service providers are not
3
required to keep information about subscribers' web browsing
4
history.
5
(c) information to the extent that it relates to a communication
6
carried by means of another relevant service operated:
7
(i) by another service provider; and
8
(ii) using the relevant service;
9
or a document to the extent that the document contains such
10
information; or
11
(d) information that the service provider is required to delete
12
because of a determination made under section 99 of the
13
Telecommunications Act 1997, or a document to the extent
14
that the document contains such information; or
15
(e) information about the location of a telecommunications
16
device that is not information used by the service provider in
17
relation to the relevant service to which the device is
18
connected.
19
(5) Without limiting subsection (1), for the purposes of this section:
20
(a) an attempt to send a communication by means of a relevant
21
service is taken to be the sending of a communication by
22
means of the service, if the attempt results in:
23
(i) a connection between the telecommunications device
24
used in the attempt and another telecommunications
25
device; or
26
(ii) an attempted connection between the
27
telecommunications device used in the attempt and
28
another telecommunications device; or
29
(iii) a conclusion being drawn, through the operation of the
30
service, that a connection cannot be made between the
31
telecommunications device used in the attempt and
32
another telecommunications device; and
33
(b) an untariffed communication by means of a relevant service
34
is taken to be a communication by means of the service.
35
(6) To avoid doubt, if information that subsection (1) requires a
36
service provider to keep in relation to a communication is not
37
created by the operation of a relevant service, subsection (1)
38
Schedule 1 Data retention
Part 1 Main amendments
6
Telecommunications (Interception and Access) Amendment (Data
Retention) Bill 2014
No. , 2014
requires the service provider to use other means to create the
1
information, or a document containing the information.
2
(7) For the purposes of paragraphs (2)(b), (c), (d) and (f) and
3
regulations made for the purposes of those paragraphs, 2 or more
4
communications that together constitute a single communications
5
session are taken to be a single communication.
6
187B Certain service providers not covered by this Part
7
(1) Subsection 187A(1) does not apply to a service provider (other
8
than a carrier that is not a carriage service provider) in relation to a
9
relevant service that it operates if:
10
(a) the service:
11
(i) is provided only to a person's immediate circle (within
12
the meaning of section 23 of the Telecommunications
13
Act 1997); or
14
(ii) is provided only to places that, under section 36 of that
15
Act, are all in the same area; and
16
(b) the service is not subject to a declaration under subsection (2)
17
of this section.
18
(2) The Communications Access Co-ordinator may declare that
19
subsection 187A(1) applies in relation to a relevant service that a
20
service provider operates.
21
(3) In considering whether to make the declaration, the
22
Communications Access Co-ordinator must have regard to:
23
(a) the interests of law enforcement and national security; and
24
(b) the objects of the Telecommunications Act 1997; and
25
(c) any other matter that the Communications Access
26
Co-ordinator considers relevant.
27
(4) The declaration must be in writing.
28
(5) A declaration made under subsection (2) is not a legislative
29
instrument.
30
Data retention Schedule 1
Main amendments Part 1
No. , 2014
Telecommunications (Interception and Access) Amendment (Data
Retention) Bill 2014
7
187C Period for keeping information and documents
1
(1) The period for which a service provider must keep, or cause to be
2
kept, information or a document under section 187A is:
3
(a) if the information is about, or the document contains
4
information about, a matter of a kind described in
5
paragraph 187A(2)(a)--the period:
6
(i) starting when the information or document came into
7
existence; and
8
(ii) ending 2 years after the closure of the account to which
9
the information or document relates; or
10
(b) otherwise--the period:
11
(i) starting when the information or document came into
12
existence; and
13
(ii) ending 2 years after it came into existence.
14
(2) However, the regulations may prescribe that, in relation to a
15
specified matter of a kind described in paragraph 187A(2)(a), the
16
period under subsection (1) of this section is the period referred to
17
in paragraph (1)(b) of this section.
18
(3) This section does not prevent a service provider from keeping
19
information or a document for a period that is longer than the
20
period provided under this section.
21
Note:
Division 3 provides for reductions in periods specified under this
22
section.
23
Division 2--Data retention implementation plans
24
187D Effect of data retention implementation plans
25
While there is in force a data retention implementation plan for a
26
relevant service operated by a service provider:
27
(a) the service provider must comply with the plan in relation to
28
communications carried by means of that service; but
29
(b) the service provider is not required to comply with
30
subsection 187A(1) (or section 187C) in relation to those
31
communications.
32
Schedule 1 Data retention
Part 1 Main amendments
8
Telecommunications (Interception and Access) Amendment (Data
Retention) Bill 2014
No. , 2014
187E Applying for approval of data retention implementation plans
1
(1) A service provider may apply to the Communications Access
2
Co-ordinator for approval of a data retention implementation plan
3
for one or more relevant services operated by the service provider.
4
(2) The plan must specify, in relation to each such service:
5
(a) an explanation of the current practices for keeping
6
information and documents that section 187A would require
7
to be kept, if the plan were not in force; and
8
(b) details of the interim arrangements that the service provider
9
proposes to be implemented, while the plan is in force, for
10
keeping such information and documents (to the extent that
11
the information and documents will not be kept in
12
compliance with section 187A (and section 187C)); and
13
(c) the day by which the service provider will comply with
14
section 187A (and section 187C) in relation to all such
15
information and documents, except to the extent that any
16
decisions under Division 3 apply.
17
(3) The day specified under paragraph (2)(c) must not be later than the
18
day on which the plan would, if approved, cease to be in force
19
under section 187H in relation to the service.
20
(4) The plan must also specify:
21
(a) any relevant services, operated by the service provider, that
22
the plan does not cover; and
23
(b) the contact details of the officers or employees of the service
24
provider in relation to the plan.
25
187F Approval of data retention implementation plans
26
(1) If, under section 187E, a service provider applies for approval of a
27
data retention implementation plan, the Communications Access
28
Co-ordinator must:
29
(a) approve the plan and notify the service provider of the
30
approval; or
31
(b) give the plan back to the service provider with a written
32
request for the service provider to amend the plan to take
33
account of specified matters.
34
Data retention Schedule 1
Main amendments Part 1
No. , 2014
Telecommunications (Interception and Access) Amendment (Data
Retention) Bill 2014
9
(2) Before making a decision under subsection (1), the
1
Communications Access Co-ordinator must take into account:
2
(a) the desirability of achieving substantial compliance with
3
section 187A (and section 187C) as soon as practicable; and
4
(b) the extent to which the plan would reduce the regulatory
5
burden imposed on the service provider by this Part; and
6
(c) if, at the time the Co-ordinator receives the application, the
7
service provider is contravening section 187A (or
8
section 187C) in relation to one or more services covered by
9
the application--the reasons for the contravention; and
10
(d) the interests of law enforcement and national security; and
11
(e) the objects of the Telecommunications Act 1997; and
12
(f) any other matter that the Co-ordinator considers relevant.
13
(3) If the Communications Access Co-ordinator does not, within 60
14
days after the day the Co-ordinator receives the application:
15
(a) make a decision on the application, and
16
(b) communicate to the applicant the decision on the application;
17
the Co-ordinator is taken, at the end of that period of 60 days, to
18
have made the decision that the service provider applied for, and to
19
have notified the service provider accordingly.
20
(4) A decision that is taken under subsection (3) to have been made in
21
relation to a service provider that applied for the decision has effect
22
only until the Communications Access Co-ordinator makes, and
23
communicates to the service provider, a decision on the
24
application.
25
187G Consultation with agencies and the ACMA
26
(1) As soon as practicable after receiving an application under
27
section 187E to approve a data retention implementation plan (the
28
original plan), the Communications Access Co-ordinator must:
29
(a) give a copy of the plan to the enforcement agencies and
30
security authorities that, in the opinion of the Co-ordinator,
31
are likely to be interested in the plan; and
32
(b) invite each such enforcement agency or security authority to
33
provide comments on the plan to the Co-ordinator.
34
The Co-ordinator may give a copy of the plan to the ACMA.
35
Schedule 1 Data retention
Part 1 Main amendments
10
Telecommunications (Interception and Access) Amendment (Data
Retention) Bill 2014
No. , 2014
Request for amendment of original plan
1
(2) If:
2
(a) the Communications Access Co-ordinator receives a
3
comment from an enforcement agency or security authority
4
requesting an amendment of the original plan; and
5
(b) the Co-ordinator considers the request to be a reasonable one;
6
the Co-ordinator:
7
(c) must request that the service provider make the amendment
8
within 30 days (the response period) after receiving the
9
comment or summary; and
10
(d) may give the service provider a copy of the comment or a
11
summary of the comment.
12
Response to request for amendment of original plan
13
(3) The service provider must respond to a request for an amendment
14
of the original plan either:
15
(a) by indicating its acceptance of the request, by amending the
16
original plan appropriately and by giving the amended plan to
17
the Communications Access Co-ordinator within the
18
response period; or
19
(b) by indicating that it does not accept the request and providing
20
its reasons for that non-acceptance.
21
The ACMA's role
22
(4) If the service provider indicates that it does not accept a request for
23
an amendment of the original plan, the Communications Access
24
Co-ordinator must:
25
(a) refer the request and the service provider's response to the
26
ACMA; and
27
(b) request the ACMA to determine whether any amendment of
28
the original plan is required.
29
(5) The ACMA must then:
30
(a) determine in writing that no amendment of the original plan
31
is required in response to the request for the amendment; or
32
(b) if, in the opinion of the ACMA:
33
(i) the request for the amendment is a reasonable one; and
34
Data retention Schedule 1
Main amendments Part 1
No. , 2014
Telecommunications (Interception and Access) Amendment (Data
Retention) Bill 2014
11
(ii) the service provider's response to the request for the
1
amendment is not reasonable;
2
determine in writing that the original plan should be amended
3
in a specified manner and give a copy of the determination to
4
the service provider.
5
Co-ordinator to approve amended plan or to refuse approval
6
(6) The Communications Access Co-ordinator must:
7
(a) if, on receipt of a determination under paragraph (5)(b), the
8
service provider amends the original plan to take account of
9
that determination and gives the amended plan to the
10
Communications Access Co-ordinator--approve the plan as
11
amended, and notify the service provider of the approval; or
12
(b) otherwise--refuse to approve the plan, and notify the service
13
provider of the refusal.
14
ACMA determination not a legislative instrument
15
(7) A determination made under subsection (5) is not a legislative
16
instrument.
17
187H When data retention implementation plans are in force
18
(1) A data retention implementation plan for a relevant service
19
operated by a service provider:
20
(a) comes into force when the Communications Access
21
Co-ordinator notifies the service provider of the approval of
22
the plan; and
23
(b) ceases to be in force in relation to that service:
24
(i) if the service provider was operating the service at the
25
commencement of this Part--at the end of the
26
implementation phase for this Part; or
27
(ii) if the service provider was not operating the service at
28
the commencement of this Part--at the end of the
29
period of 18 months starting on the day the service
30
provider started to operate the service after that
31
commencement.
32
Schedule 1 Data retention
Part 1 Main amendments
12
Telecommunications (Interception and Access) Amendment (Data
Retention) Bill 2014
No. , 2014
(2) The implementation phase for this Part is the end of the period of
1
18 months starting on the commencement of this Part.
2
187J Amending data retention implementation plans
3
(1) If a service provider's data retention implementation plan is in
4
force, it may be amended only if:
5
(a) the service provider applies to the Communications Access
6
Co-ordinator for approval of the amendment, and the
7
Co-ordinator approves the amendment; or
8
(b) the Co-ordinator makes a request to the service provider for
9
the amendment to be made, and the service provider agrees to
10
the amendment.
11
(2) Section 187F applies in relation to approval of the amendment
12
under paragraph (1)(a) as if the application for approval of the
13
amendment were an application under section 187E for approval of
14
a data retention implementation plan.
15
(3) An amendment of a data retention implementation plan:
16
(a) comes into force when:
17
(i) if paragraph (1)(a) applies--the Co-ordinator notifies
18
the service provider of the approval of the amendment;
19
or
20
(ii) if paragraph (1)(b) applies--the service provider
21
notifies the Co-ordinator of the service provider's
22
agreement to the amendment; but
23
(b) does not effect when the plan ceases to be in force under
24
paragraph 187H(1)(b).
25
Division 3--Exemptions
26
187K The Communications Access Co-ordinator may grant
27
exemptions or variations
28
Decision to exempt or vary
29
(1) The Communications Access Co-ordinator may:
30
(a) exempt a specified service provider from the obligations
31
imposed on the service provider under this Part, either
32
Data retention Schedule 1
Main amendments Part 1
No. , 2014
Telecommunications (Interception and Access) Amendment (Data
Retention) Bill 2014
13
generally or in so far as they relate to a specified kind of
1
relevant service; or
2
(b) vary the obligations imposed on a specified service provider
3
under this Part, either generally or in so far as they relate to a
4
specified kind of relevant service; or
5
(c) vary, in relation to a specified service provider, a period
6
specified in section 187C, either generally or in relation to
7
information or documents that relate to a specified kind of
8
relevant service.
9
A variation must not impose obligations that would exceed the
10
obligations to which a service provider would otherwise be subject
11
under sections 187A and 187C.
12
(2) The decision must be in writing.
13
(3) The decision may be:
14
(a) unconditional; or
15
(b) subject to such conditions as are specified in the exemption.
16
(4) A decision made under subsection (1) is not a legislative
17
instrument.
18
Effect of applying for exemption or variation
19
(5) If a service provider applies in writing to the Communications
20
Access Co-ordinator for a particular decision under subsection (1)
21
relating to the service provider:
22
(a) the Co-ordinator:
23
(i) must give a copy of the application to the enforcement
24
agencies and security authorities that, in the opinion of
25
the Co-ordinator, are likely to be interested in the
26
application; and
27
(ii) may give a copy of the application to the ACMA; and
28
(b) if the Co-ordinator does not, within 60 days after the day the
29
Co-ordinator receives the application:
30
(i) make a decision on the application, and
31
(ii) communicate to the applicant the decision on the
32
application;
33
Schedule 1 Data retention
Part 1 Main amendments
14
Telecommunications (Interception and Access) Amendment (Data
Retention) Bill 2014
No. , 2014
the Co-ordinator is taken, at the end of that period of 60 days,
1
to have made the decision that the service provider applied
2
for.
3
(6) A decision that is taken under paragraph (5)(b) to have been made
4
in relation to a service provider that applied for the decision has
5
effect only until the Communications Access Co-ordinator makes,
6
and communicates to the service provider, a decision on the
7
application.
8
Matters to be taken into account
9
(7) Before making a decision under subsection (1) in relation to a
10
service provider, the Communications Access Co-ordinator must
11
take into account:
12
(a) the interests of law enforcement and national security; and
13
(b) the objects of the Telecommunications Act 1997; and
14
(c) the service provider's history of compliance with this Part;
15
and
16
(d) the service provider's costs, or anticipated costs, of
17
complying with this Part; and
18
(e) any alternative data retention arrangements that the service
19
provider has identified.
20
(8) The Communications Access Co-ordinator may take into account
21
any other matter he or she considers relevant.
22
Division 4--Miscellaneous
23
187L Confidentiality of applications
24
(1) If the Communications Access Co-ordinator receives a service
25
provider's application under section 187E for approval of a data
26
retention implementation plan, or application for a decision under
27
subsection 187K(1), the Co-ordinator must:
28
(a) treat the application as confidential; and
29
(b) ensure that it is not disclosed to any other person or body
30
(other than the ACMA, an enforcement agency or a security
31
authority) without the written permission of the service
32
provider.
33
Data retention Schedule 1
Main amendments Part 1
No. , 2014
Telecommunications (Interception and Access) Amendment (Data
Retention) Bill 2014
15
(2) The ACMA, an enforcement agency or a security authority must, if
1
it receives under paragraph 187G(1)(a) or 187K(5)(a) a copy of a
2
service provider's application:
3
(a) treat the copy as confidential; and
4
(b) ensure that it is not disclosed to any other person or body
5
without the written permission of the service provider.
6
187M Pecuniary penalties and infringement notices
7
Subsection 187A(1) and paragraph 187D(a) are civil penalty
8
provisions for the purposes of the Telecommunications Act 1997.
9
Note:
Parts 31 and 31B of the Telecommunications Act 1997 provide for
10
pecuniary penalties and infringement notices for contraventions of
11
civil penalty provisions.
12
187N Review of operation of Part
13
(1) The Parliamentary Joint Committee on Intelligence and Security
14
must review the operation of this Part as soon as practicable after
15
the third anniversary of the end of the implementation phase for
16
this Part.
17
(2) The Committee must give the Minister a written report of the
18
review.
19
187P Annual reports
20
(1) The Minister must, as soon as practicable after each 30 June, cause
21
to be prepared a written report on the operation of this Part during
22
the year ending on that 30 June.
23
(2) A report under subsection (1) must be included in the report
24
prepared under subsection 186(2) relating to the year ending on
25
that 30 June.
26
(3) A report under subsection (1) must not be made in a manner that is
27
likely to enable the identification of a person.
28
Schedule 1 Data retention
Part 2 Other amendments
16
Telecommunications (Interception and Access) Amendment (Data
Retention) Bill 2014
No. , 2014
Part 2
--Other amendments
1
Telecommunications Act 1997
2
2 Section 7 (at the end of the definition of civil penalty
3
provision)
4
Add:
5
; or (c) a provision of the Telecommunications (Interception and
6
Access) Act 1979 that is declared by that Act to be a civil
7
penalty provision for the purposes of this Act.
8
3 Subsection 105(5A)
9
Repeal the subsection, substitute:
10
(5A) The ACMA must monitor, and report each financial year to the
11
Minister on:
12
(a) the operation of Part 14 and on the costs of compliance with
13
the requirements of that Part; and
14
(b) without limiting paragraph (a), the costs of compliance with
15
the requirements of Part 5-1A of the Telecommunications
16
(Interception and Access) Act 1979 (about data retention).
17
4 Subsection 314(8)
18
Omit "Part 5-3 or 5-5 of the Telecommunications (Interception and
19
Access) Act 1979 (about", substitute "Part 5-1A, 5-3 or 5-5 of the
20
Telecommunications (Interception and Access) Act 1979 (about data
21
retention,".
22
Telecommunications (Interception and Access) Act 1979
23
5 Subsection 5(1)
24
Insert:
25
implementation phase has the meaning given by
26
subsection 187H(2).
27
service provider has the meaning given by subsection 187A(1).
28
Data retention Schedule 1
Other amendments Part 2
No. , 2014
Telecommunications (Interception and Access) Amendment (Data
Retention) Bill 2014
17
6 At the end of subsection 6R(3)
1
Add "and all the enforcement agencies".
2
Schedule 1 Data retention
Part 3 Application provisions
18
Telecommunications (Interception and Access) Amendment (Data
Retention) Bill 2014
No. , 2014
Part 3
--Application provisions
1
7 Existing information and documents
2
(1)
The amendments made by this Schedule apply in relation to information
3
or a document:
4
(a) that is of a kind referred to in paragraph 187A(1)(a) or(b) of
5
the Telecommunications (Interception and Access) Act 1979
6
as amended by this Act; and
7
(b) that a service provider was keeping, or causing to be kept,
8
immediately before the commencement of this item; and
9
(c) in relation to which a period specified in section 187C of that
10
Act as so amended had not expired before that
11
commencement.
12
(2)
However, this item does not require a service provider to create, or to
13
have created, any information or document that was not created by the
14
operation, before that commencement, of a service to which Part 5-1A
15
of that Act as so amended applies.
16
8 Reducing the period for keeping information or documents
17
(1)
A service provider must not, before the commencement Part 5-1A of the
18
Telecommunications (Interception and Access) Act 1979 as amended by
19
this Act, reduce the period for which it keeps or causes to be kept any
20
information or document that the service provider will, after that
21
commencement, be required by that Part to keep or cause to be kept.
22
(2)
This item is taken to be a civil penalty provision for the purposes of the
23
Telecommunications Act 1997, as if it had been so declared by a
24
provision of that Act.
25
9 Applications made before commencement of Part 5-1A
26
(1)
At any time after this Act receives the Royal Assent, a service provider
27
may apply for either or both of the following:
28
(a) approval of:
29
(i) a data retention implementation plan; or
30
(ii) an amendment of a data retention implementation plan;
31
Data retention Schedule 1
Application provisions Part 3
No. , 2014
Telecommunications (Interception and Access) Amendment (Data
Retention) Bill 2014
19
under Division 2 of Part 5-1A of the Telecommunications
1
(Interception and Access) Act 1979 as amended by this Act;
2
(b) a decision under subsection 187K(1) of that Act as so
3
amended.
4
(2)
Paragraph (1)(a) of this item does not apply to an application for
5
approval of a data retention implementation plan unless the application
6
would, if made after the commencement of Part 5-1A of that Act as so
7
amended, have complied with section 187E of that Act as so amended.
8
10 Decisions made before commencement of Part 5-1A
9
(1)
To avoid doubt, the power to make a decision under section 187F,
10
187G, 187J or 187K of the Telecommunications (Interception and
11
Access) Act 1979 as amended by this Act is taken, for the purposes of
12
section 4 of the Acts Interpretation Act 1901, to be a power to make an
13
instrument of an administrative character.
14
(2)
Subsection 187F(3) of the Telecommunications (Interception and
15
Access) Act 1979 as amended by this Act applies, in relation to an
16
application made before the commencement of Part 5-1A of that Act as
17
so amended for approval of a data retention implementation plan, as if
18
references in that subsection to 60 days were references to the number
19
of days provided for in subitem (4) of this item.
20
(3)
Paragraph 187K(5)(b) of the Telecommunications (Interception and
21
Access) Act 1979 as amended by this Act applies, in relation to an
22
application made before the commencement of Part 5-1A of that Act as
23
so amended for a decision under subsection 187K(1) of that Act as so
24
amended, as if references in that paragraph to 60 days were references
25
to the number of days provided for in subitem (4) of this item.
26
(4)
For the purposes of subitem (2) or (3), the number of days is:
27
(a) the number of days in the period between:
28
(i) the day the application referred to in that subitem was
29
made; and
30
(ii) the day immediately before the commencement of
31
Part 5-1A of the Telecommunications (Interception and
32
Access) Act 1979 as amended by this Act; or
33
(b) 60 days;
34
whichever is the greater.
35
Schedule 1 Data retention
Part 3 Application provisions
20
Telecommunications (Interception and Access) Amendment (Data
Retention) Bill 2014
No. , 2014
11 Keeping information or documents before commencement
1
of Part 5-1A
2
A service provider may, before the commencement of this item, keep or
3
cause to be kept any information or document that, after that
4
commencement, Part 5-1A of the Telecommunications (Interception
5
and Access) Act 1979 as amended by this Act will require the service
6
provider to keep or cause to be kept.
7
Restricting access to stored communications and telecommunications data Schedule 2
Main amendments Part 1
No. , 2014
Telecommunications (Interception and Access) Amendment (Data
Retention) Bill 2014
21
Schedule 2
--Restricting access to stored
1
communications and
2
telecommunications data
3
Part 1
--Main amendments
4
Telecommunications (Interception and Access) Act 1979
5
1 Subparagraphs 107J(1)(a)(i) and (ii)
6
Omit "an enforcement agency", substitute "a criminal law-enforcement
7
agency".
8
2 Subsection 110(1)
9
Omit "An enforcement agency", substitute "A criminal
10
law-enforcement agency".
11
3 After section 110
12
Insert:
13
110A Meaning of criminal law-enforcement agency
14
(1) Each of the following is a criminal law-enforcement agency:
15
(a) the Australian Federal Police;
16
(b) a Police Force of a State;
17
(c) the Australian Commission for Law Enforcement Integrity;
18
(d) the ACC;
19
(e) the Australian Customs and Border Protection Service;
20
(f) the Crime Commission;
21
(g) the Independent Commission Against Corruption;
22
(h) the Police Integrity Commission;
23
(i) the IBAC;
24
(j) the Crime and Corruption Commission of Queensland;
25
(k) the Corruption and Crime Commission;
26
(l) the Independent Commissioner Against Corruption;
27
(m) subject to subsection (7), an authority or body for which a
28
declaration under subsection (3) is in force.
29
Schedule 2 Restricting access to stored communications and telecommunications data
Part 1 Main amendments
22
Telecommunications (Interception and Access) Amendment (Data
Retention) Bill 2014
No. , 2014
(2) The head of an authority or body may request the Minister to
1
declare the authority or body to be a criminal law-enforcement
2
agency.
3
(3) The Minister may, by legislative instrument, declare:
4
(a) the authority or body to be a criminal law-enforcement
5
agency; and
6
(b) persons specified, or of a kind specified, in the declaration to
7
be officers of the criminal law-enforcement agency for the
8
purposes of this Act.
9
(4) In considering whether to make the declaration, the Minister must
10
have regard to:
11
(a) whether the functions of the authority or body include
12
investigating serious contraventions; and
13
(b) whether access to stored communications, and the making of
14
authorisations under section 180, would be reasonably likely
15
to assist the authority or body in investigating those serious
16
contraventions; and
17
(c) whether the authority or body:
18
(i) is required to comply with the Australian Privacy
19
Principles; or
20
(ii) is required to comply with a binding scheme that
21
provides a level of protection of personal information
22
that is comparable to the level provided by the
23
Australian Privacy Principles; or
24
(iii) has agreed in writing to comply with a scheme
25
providing such a level of protection of personal
26
information, in relation to personal information
27
disclosed to it under Chapter 3 or 4, if the declaration is
28
made; and
29
(d) whether the authority or body proposes to adopt processes
30
and practices that would ensure its compliance with the
31
obligations of a criminal law-enforcement agency under
32
Chapter 3, and the obligations of an enforcement agency
33
under Chapter 4; and
34
(e) whether the Minister considers that the declaration would be
35
in the public interest; and
36
(f) any other matter that the Minister considers relevant.
37
Restricting access to stored communications and telecommunications data Schedule 2
Main amendments Part 1
No. , 2014
Telecommunications (Interception and Access) Amendment (Data
Retention) Bill 2014
23
(5) In considering whether to make the declaration, the Minister may
1
consult such persons or bodies as the Minister thinks fit. In
2
particular, the Minister may consult the Privacy Commissioner and
3
the Ombudsman.
4
(6) The declaration may be subject to conditions.
5
(7) Without limiting subsection (6), a condition may provide that the
6
authority or body is not to exercise:
7
(a) a power conferred on a criminal law-enforcement agency by
8
or under a specified provision in Chapter 3; or
9
(b) a power conferred on an enforcement agency by or under a
10
specified provision in Chapter 4.
11
The authority or body is taken, for the purposes of this Act, not to
12
be a criminal law-enforcement agency for the purposes of that
13
provision in Chapter 3, or an enforcement agency for the purposes
14
of that provision in Chapter 4, as the case requires.
15
(8) The Minister may, by legislative instrument, revoke a declaration
16
under subsection (3) relating to an authority or body if the Minister
17
is no longer satisfied that the circumstances justify the declaration
18
remaining in force.
19
(9) The revocation under subsection (8) of a declaration relating to an
20
authority or body does not affect the validity of:
21
(a) a domestic preservation notice given by the authority or
22
body; or
23
(b) a stored communications warrant issued to the authority or
24
body; or
25
(c) an authorisation made by an authorised officer of the
26
authority or body under Division 4 of Part 4-1;
27
that was in force immediately before the revocation took effect.
28
4 Before section 177
29
Insert:
30
176A Meaning of enforcement agency
31
(1) Each of the following is an enforcement agency:
32
Schedule 2 Restricting access to stored communications and telecommunications data
Part 1 Main amendments
24
Telecommunications (Interception and Access) Amendment (Data
Retention) Bill 2014
No. , 2014
(a) subject to subsection 110A(7), a criminal law-enforcement
1
agency;
2
(b) subject to subsection (7), an authority or body for which a
3
declaration under subsection (3) is in force.
4
(2) The head of an authority or body may request the Minister to
5
declare the authority or body to be an enforcement agency.
6
(3) The Minister may, by legislative instrument, declare:
7
(a) the authority or body to be an enforcement agency; and
8
(b) persons specified, or of a kind specified, in the declaration to
9
be officers of the enforcement agency for the purposes of this
10
Act.
11
(4) In considering whether to make the declaration, the Minister must
12
have regard to:
13
(a) whether the functions of the authority or body include:
14
(i) enforcement of the criminal law; or
15
(ii) administering a law imposing a pecuniary penalty; or
16
(iii) administering a law relating to the protection of the
17
public revenue; and
18
(b) whether the making of authorisations under section 178 or
19
179 would be reasonably likely to assist the authority or body
20
in performing those functions; and
21
(c) whether the authority or body:
22
(i) is required to comply with the Australian Privacy
23
Principles; or
24
(ii) is required to comply with a binding scheme that
25
provides a level of protection of personal information
26
that is comparable to the level provided by the
27
Australian Privacy Principles; or
28
(iii) has agreed in writing to comply with a scheme
29
providing such a level of protection of personal
30
information, in relation to personal information
31
disclosed to it under Chapter 4, if the declaration is
32
made; and
33
(d) whether the authority or body proposes to adopt processes
34
and practices that would ensure its compliance with the
35
obligations of an enforcement agency under Chapter 4; and
36
Restricting access to stored communications and telecommunications data Schedule 2
Main amendments Part 1
No. , 2014
Telecommunications (Interception and Access) Amendment (Data
Retention) Bill 2014
25
(e) whether the Minister considers that the declaration would be
1
in the public interest; and
2
(f) any other matter that the Minister considers relevant.
3
(5) In considering whether to make the declaration, the Minister may
4
consult such persons or bodies as the Minister thinks fit. In
5
particular, the Minister may consult the Privacy Commissioner and
6
the Ombudsman.
7
(6) The declaration may be subject to conditions.
8
(7) Without limiting subsection (6), a condition may provide that the
9
authority or body is not to exercise a power conferred on an
10
enforcement agency by or under a specified provision in Chapter 4.
11
The authority or body is taken, for the purposes of this Act, not to
12
be an enforcement agency for the purposes of that provision.
13
(8) The Minister may, by legislative instrument, revoke a declaration
14
under subsection (3) relating to an authority or body if the Minister
15
is no longer satisfied that the circumstances justify the declaration
16
remaining in force.
17
(9) The revocation under subsection (8) of a declaration relating to an
18
authority or body does not affect the validity of an authorisation,
19
made by an authorised officer of the authority or body under this
20
Division, that was in force immediately before the revocation took
21
effect.
22
Schedule 2 Restricting access to stored communications and telecommunications data
Part 2 Other amendments
26
Telecommunications (Interception and Access) Amendment (Data
Retention) Bill 2014
No. , 2014
Part 2
--Other amendments
1
Telecommunications (Interception and Access) Act 1979
2
5 Subsection 5(1) (definition of Crime and Misconduct
3
Commission)
4
Omit "Misconduct", substitute "Corruption".
5
6 Subsection 5(1) (definition of criminal law-enforcement
6
agency)
7
Repeal the definition, substitute:
8
criminal law-enforcement agency has the meaning given by
9
section 110A.
10
7 Subsection 5(1) (definition of enforcement agency)
11
Repeal the definition, substitute:
12
enforcement agency has the meaning given by section 176A.
13
8 Subsection 5(1) (at the end of the definition of officer)
14
Add:
15
; or (n) in the case of a criminal law-enforcement agency for which a
16
declaration under subsection 110A(3) is in force--a person
17
specified, or of a kind specified, in the declaration to be an
18
officer of the criminal law-enforcement agency for the
19
purposes of this Act; or
20
(o) in the case of an enforcement agency for which a declaration
21
under subsection 176A(3) is in force--a person specified, or
22
of a kind specified, in the declaration to be an officer of the
23
enforcement agency for the purposes of this Act.
24
9 Section 107G
25
Omit "an enforcement agency or the Organisation", substitute "a
26
criminal law-enforcement agency, or the Organisation,".
27
Restricting access to stored communications and telecommunications data Schedule 2
Other amendments Part 2
No. , 2014
Telecommunications (Interception and Access) Amendment (Data
Retention) Bill 2014
27
10 Section 107G
1
Omit "an interception agency or the Organisation", substitute "a
2
criminal law-enforcement agency that is an interception agency, or the
3
Organisation,".
4
11 Subsection 107J(1) (heading)
5
Repeal the heading, substitute:
6
Notices given by criminal law-enforcement agencies
7
12 Paragraphs 107L(2)(a), 107M(1)(a), (2)(a) and (3)(a)
8
Omit "an enforcement agency", substitute "a criminal law-enforcement
9
agency".
10
13 Part 3-3 (heading)
11
Repeal the heading, substitute:
12
Part 3-3--Access by criminal law-enforcement
13
agencies to stored communications
14
14 Section 110 (heading)
15
Repeal the heading, substitute:
16
110 Criminal law-enforcement agencies may apply for stored
17
communications warrants
18
15 Subsections 111(3) and 116(1)
19
Omit "an enforcement agency", substitute "a criminal law-enforcement
20
agency".
21
16 Subparagraph 120(1)(a)(i)
22
Omit "enforcement agency", substitute "criminal law-enforcement
23
agency".
24
17 Subsection 120(2)
25
Omit "an enforcement agency's", substitute "a criminal
26
law-enforcement agency's".
27
Schedule 2 Restricting access to stored communications and telecommunications data
Part 2 Other amendments
28
Telecommunications (Interception and Access) Amendment (Data
Retention) Bill 2014
No. , 2014
18 Subparagraph 120(2)(b)(ii)
1
Omit "enforcement agency", substitute "criminal law-enforcement
2
agency".
3
19 Paragraph 120(3)(a)
4
Omit "enforcement agency's", substitute "criminal law-enforcement
5
agency's".
6
20 Paragraph 120(3)(a)
7
Omit "enforcement agency", substitute "criminal law-enforcement
8
agency".
9
21 Subsection 120(4)
10
Omit "enforcement agency", substitute "criminal law-enforcement
11
agency".
12
22 Subsection 122(1)
13
Omit "an enforcement agency", substitute "a criminal law-enforcement
14
agency".
15
23 Paragraph 122(1)(a)
16
Omit "enforcement agency", substitute "criminal law-enforcement
17
agency".
18
24 Subsection 122(2)
19
Omit "an enforcement agency", substitute "a criminal law-enforcement
20
agency".
21
25 Subsection 122(2)
22
Omit "other enforcement agency", substitute "other criminal
23
law-enforcement agency".
24
26 Subsection 122(3)
25
Omit "an enforcement agency", substitute "a criminal law-enforcement
26
agency".
27
Restricting access to stored communications and telecommunications data Schedule 2
Other amendments Part 2
No. , 2014
Telecommunications (Interception and Access) Amendment (Data
Retention) Bill 2014
29
27 Subsection 123(1)
1
Omit "an enforcement agency", substitute "a criminal law-enforcement
2
agency".
3
28 Subsection 123(1)
4
Omit "other enforcement agency", substitute "other criminal
5
law-enforcement agency".
6
29 Subsection 123(2)
7
Omit "enforcement agency", substitute "criminal law-enforcement
8
agency".
9
30 Subsection 127(2)
10
Omit "an enforcement agency" (wherever occurring), substitute "a
11
criminal law-enforcement agency".
12
31 Paragraphs 127(2)(a) and (b)
13
Omit "enforcement agency", substitute "criminal law-enforcement
14
agency".
15
32 Subsections 127(3) and 128(1)
16
Omit "an enforcement agency", substitute "a criminal law-enforcement
17
agency".
18
33 Subsection 128(3)
19
Omit "an enforcement agency" (wherever occurring), substitute "a
20
criminal law-enforcement agency".
21
34 Section 130 (heading)
22
Repeal the heading, substitute:
23
130 Evidentiary certificates relating to actions by criminal
24
law-enforcement agencies
25
35 Subsections 130(1) and (2)
26
Omit "an enforcement agency", substitute "a criminal law-enforcement
27
agency".
28
Schedule 2 Restricting access to stored communications and telecommunications data
Part 2 Other amendments
30
Telecommunications (Interception and Access) Amendment (Data
Retention) Bill 2014
No. , 2014
36 Section 131
1
Omit "an enforcement agency", substitute "a criminal law-enforcement
2
agency".
3
37 Subsection 135(1) (heading)
4
Repeal the heading, substitute:
5
Communicating information to the appropriate criminal
6
law-enforcement agency
7
38 Paragraph 135(1)(a)
8
Omit "enforcement agency", substitute "criminal law-enforcement
9
agency".
10
39 Subsection 135(2)
11
Omit "an enforcement agency", substitute "a criminal law-enforcement
12
agency".
13
40 Section 138 (heading)
14
Repeal the heading, substitute:
15
138 Employee of carrier may communicate information to criminal
16
law-enforcement agency
17
41 Subsection 138(2)
18
Omit "enforcement agency", substitute "criminal law-enforcement
19
agency".
20
42 Subsection 139(1)
21
Omit "an enforcement agency", substitute "a criminal law-enforcement
22
agency".
23
43 Paragraph 139(2)(a)
24
Omit "enforcement agency", substitute "criminal law-enforcement
25
agency".
26
Restricting access to stored communications and telecommunications data Schedule 2
Other amendments Part 2
No. , 2014
Telecommunications (Interception and Access) Amendment (Data
Retention) Bill 2014
31
44 Paragraph 150(1)(a)
1
Omit "an enforcement agency's", substitute "a criminal
2
law-enforcement agency's".
3
45 Subsections 159(1) and 160(1)
4
Omit "an enforcement agency", substitute "a criminal law-enforcement
5
agency".
6
46 Subsections 161A(1) and (2) and 162(1)
7
Omit "enforcement agency", substitute "criminal law-enforcement
8
agency".
9
47 Section 163
10
Omit "enforcement agency", substitute "criminal law-enforcement
11
agency".
12
Schedule 2 Restricting access to stored communications and telecommunications data
Part 3 Application provisions
32
Telecommunications (Interception and Access) Amendment (Data
Retention) Bill 2014
No. , 2014
Part 3
--Application provisions
1
48 Existing domestic preservation notices
2
If:
3
(a) a domestic preservation notice was given to a carrier before
4
the commencement of this Schedule; and
5
(b) the notice was in force immediately before that
6
commencement; and
7
(c) the authority or body that gave the notice was not the
8
Organisation; and
9
(d) on that commencement, the authority or body is not a
10
criminal law-enforcement agency (whether or not it is an
11
enforcement agency);
12
after that commencement, the notice continues in force, and Chapter 3
13
of the Telecommunications (Interception and Access) Act 1979 as
14
amended by this Act continues to apply in relation to the notice, as if
15
the authority or body were a criminal law-enforcement agency.
16
49 Existing stored communications warrants
17
If:
18
(a) a stored communications warrant was issued to an authority
19
or body before the commencement of this Schedule; and
20
(b) the warrant was in force immediately before that
21
commencement; and
22
(c) on that commencement, the authority or body is not a
23
criminal law-enforcement agency (whether or not it is an
24
enforcement agency);
25
after that commencement, the warrant continues in force, and Chapter 3
26
of the Telecommunications (Interception and Access) Act 1979 as
27
amended by this Act continues to apply in relation to the warrant, as if
28
the authority or body were a criminal law-enforcement agency.
29
50 Existing authorisations
30
If:
31
(a) an authority or body made an authorisation under Division 4
32
of Part 4-1 of the Telecommunications (Interception and
33
Restricting access to stored communications and telecommunications data Schedule 2
Application provisions Part 3
No. , 2014
Telecommunications (Interception and Access) Amendment (Data
Retention) Bill 2014
33
Access) Act 1979 before the commencement of this Schedule;
1
and
2
(b) the authorisation was in force immediately before that
3
commencement; and
4
(c) on that commencement, the authority or body is not an
5
enforcement agency;
6
after that commencement, the authorisation continues in force, and
7
Chapter 4 of the Telecommunications (Interception and Access) Act
8
1979 as amended by this Act continues to apply in relation to the
9
authorisation, as if the authority or body were an enforcement agency.
10
51 Evidentiary certificates
11
(1)
If:
12
(a) an authority or body issued a certificate under section 107U
13
or 130 of the Telecommunications (Interception and Access)
14
Act 1979 before the commencement of this Schedule; and
15
(b) on that commencement, the authority or body is not a
16
criminal law-enforcement agency (whether or not it is an
17
enforcement agency);
18
after that commencement, the certificate continues in force as if the
19
authority or body were a criminal law-enforcement agency.
20
(2)
If:
21
(a) an authority or body issued a certificate under section 185C
22
of the Telecommunications (Interception and Access) Act
23
1979 before the commencement of this Schedule; and
24
(b) on that commencement, the authority or body is not an
25
enforcement agency;
26
after that commencement, the certificate continues in force as if the
27
authority or body were an enforcement agency.
28
(3)
An authority or body that:
29
(a) was a criminal law-enforcement agency immediately before
30
the commencement of this Schedule; and
31
(b) on that commencement, is not a criminal law-enforcement
32
agency (whether or not it is an enforcement agency);
33
Schedule 2 Restricting access to stored communications and telecommunications data
Part 3 Application provisions
34
Telecommunications (Interception and Access) Amendment (Data
Retention) Bill 2014
No. , 2014
continues after that commencement to have the power to issue
1
certificates under section 107U or 130 of the Telecommunications
2
(Interception and Access) Act 1979 as amended by this Act, with
3
respect to anything done before that commencement, as if it were a
4
criminal law-enforcement agency.
5
(4)
An authority or body that:
6
(a) was an enforcement agency immediately before the
7
commencement of this Schedule; and
8
(b) on that commencement, is not an enforcement agency;
9
continues after that commencement to have the power to issue
10
certificates under section 185C of the Telecommunications (Interception
11
and Access) Act 1979 as amended by this Act, with respect to anything
12
done before that commencement, as if it were an enforcement agency.
13
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Schedule 3
--Oversight by the Commonwealth
1
Ombudsman
2
Part 1
--Amendments
3
Telecommunications (Interception and Access) Act 1979
4
1 Subsection 5C(1)
5
Omit "or 3-5", substitute "or Chapter 4A".
6
2 At the end of section 87
7
Add:
8
(6) A person must not refuse:
9
(a) to attend before a person; or
10
(b) to give information; or
11
(c) to answer questions;
12
when required to do so under this section.
13
Penalty for an offence against this subsection:
Imprisonment
14
for 6 months.
15
3 Section 134
16
After "or 3-6", insert "or Chapter 4A".
17
4 Part 3-5 (heading)
18
Repeal the heading, substitute:
19
Part 3-5--Keeping and inspection of records
20
5 Divisions 1 and 2 of Part 3-5
21
Repeal the Divisions, substitute:
22
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Division 1--Obligation to keep records
1
151 Obligation to keep records
2
(1) The chief officer of a criminal law-enforcement agency must cause
3
the following, or copies of the following, to be kept in the agency's
4
records for the period specified in subsection (3):
5
(a) each preservation notice given by the agency, and documents
6
or other materials that indicate whether the notice was
7
properly given;
8
(b) each notice under subsection 107L(3) of the revocation of
9
such a preservation notice, and documents or other materials
10
that indicate whether the revocation was properly made;
11
(c) each stored communications warrant issued to the agency,
12
and documents or other materials that indicate whether the
13
warrant was properly applied for, including:
14
(i) a copy of each application for such a warrant; and
15
(ii) a copy of each affidavit supporting such an application;
16
and
17
(iii) documents or other materials that indicate whether the
18
applicant for such a warrant complied with the
19
requirements of Division 1 of Part 3-3;
20
(d) each instrument revoking such a warrant under section 122,
21
and documents or other materials that indicate whether the
22
revocation was properly made;
23
(e) documents or other materials that indicate the persons
24
approved under subsection 127(2), and the persons appointed
25
under subsection 127(3) to be approving officers for the
26
purposes of subsection 127(2);
27
(f) each authorisation by the chief officer under
28
subsection 135(2);
29
(g) each request for mutual assistance, being a request to which a
30
mutual assistance application relates, and documents or other
31
materials that indicate:
32
(i) whether the request was made lawfully; or
33
(ii) the offence in relation to which the request was made;
34
(h) documents or other materials that indicate whether the
35
communication, use or recording of lawfully accessed
36
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information (other than foreign intelligence information,
1
preservation notice information or stored communication
2
warrant information) complied with the requirements of
3
Division 2 of Part 3-4;
4
(i) documents indicating whether information or a record was
5
destroyed in accordance with section 150;
6
(j) each evidentiary certificate issued under this Chapter;
7
(k) each report given to the Minister under Division 1 of
8
Part 3-6;
9
(l) documents and other materials of a kind prescribed under
10
subsection (2) of this section.
11
(2) The Minister may, by legislative instrument, prescribe kinds of
12
documents and other materials that the chief officer of a criminal
13
law-enforcement agency must cause to be kept in the agency's
14
records.
15
(3) The period for which the chief officer of a criminal
16
law-enforcement agency must cause a particular item to be kept in
17
the agency's records under subsection (1) of this section is the
18
period:
19
(a) starting when the item came into existence; and
20
(b) ending:
21
(i) when 3 years have elapsed since the item came into
22
existence; or
23
(ii) when the Ombudsman gives a report to the Minister
24
under section 186J that is about records that include the
25
item;
26
whichever happens earlier.
27
6 At the end of Part 4-2
28
Add:
29
186A Obligation to keep records
30
(1) The chief officer of an enforcement agency must cause the
31
following, or copies of the following, to be kept in the agency's
32
records for the period specified in subsection (3):
33
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(a) each authorisation made by an authorised officer of the
1
agency under section 178, 178A, 179 or 180, and documents
2
or other materials that indicate any of the following:
3
(i) whether the authorisation was properly made (including
4
whether the authorised officer took into account the
5
matters referred to in subsection 178(3), 178A(3),
6
179(3) or 180(4) (as the case requires), the matters
7
referred to in section 180F and all other relevant
8
considerations);
9
(ii) if the authorisation is made under section 180--the
10
period during which the authorisation is in force;
11
(iii) when the authorisation was notified under
12
subsection 184(3);
13
(b) each notice of the revocation under subsection 180(7) of an
14
authorisation under section 180, and documents or other
15
materials that indicate any of the following:
16
(i) whether the revocation was properly made;
17
(ii) when the revocation was notified under
18
subsection 184(4);
19
(c) if the agency is the Australian Federal Police--each
20
authorisation made by an authorised officer of the Australian
21
Federal Police under section 180A or 180B, and documents
22
or other materials that indicate any of the following:
23
(i) whether the authorisation was properly made (including
24
whether the authorised officer took into account the
25
matters referred to in subsection 180A(3) or (5),
26
180B(3) or (8) or 180E(1) (as the case requires), the
27
matters referred to in section 180F and all other relevant
28
considerations);
29
(ii) if the authorisation is made under section 180B--the
30
period during which the authorisation is in force;
31
(iii) if the authorisation is made under subsection 180B(8)--
32
whether the authorised officer was satisfied as to the
33
matters referred to in paragraphs 180B(8)(a) and (b);
34
(iv) when the authorisation was notified under
35
subsection 184(5);
36
(d) if the agency is the Australian Federal Police--each notice of
37
the extension under subsection 180B(6) of an authorisation
38
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under section 180B, and documents or other materials that
1
indicate any of the following:
2
(i) whether the extension was properly made;
3
(ii) when the extension was notified under
4
subsection 184(5);
5
(e) if the agency is the Australian Federal Police--each notice of
6
the revocation under subsection 180B(4) of an authorisation
7
under section 180B, and documents or other materials that
8
indicate any of the following:
9
(i) whether the revocation was properly made;
10
(ii) when the revocation was notified under
11
subsection 184(6);
12
(f) if the agency is the Australian Federal Police--each
13
authorisation made by an authorised officer of the Australian
14
Federal Police under section 180C or 180D, and documents
15
or other materials that indicate whether the authorisation was
16
properly made, including whether the authorised officer took
17
into account:
18
(i) the matters referred to in subsection 180C(2), 180D(2)
19
or 180E(1) (as the case requires); and
20
(ii) the matters referred to in section 180F; and
21
(iii) all other relevant considerations;
22
(g) documents or other materials that indicate whether:
23
(i) a disclosure of information or a document to which
24
subsection 181B(1) or (2) applies took place in
25
circumstances referred to in subsection 181B(3); or
26
(ii) a use of information or a document to which
27
subsection 181B(4) or (5) applies took place in
28
circumstances referred to in subsection 181B(6); or
29
(iii) a disclosure or use of information or a document to
30
which subsection 182(1) applies took place in
31
circumstances referred to in subsection 182(2), (2A),
32
(3), (4) or (4A);
33
(h) each evidentiary certificate issued under section 185C;
34
(i) each report given to the Minister under section 186;
35
(j) documents and other materials of a kind prescribed under
36
subsection (2) of this section.
37
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(2) The Minister may, by legislative instrument, prescribe kinds of
1
documents and other materials that the chief officer of an
2
enforcement agency must cause to be kept in the agency's records.
3
(3) The period for which the chief officer of an enforcement agency
4
must cause a particular item to be kept in the agency's records
5
under subsection (1) of this section is the period:
6
(a) starting when the item came into existence; and
7
(b) ending:
8
(i) when 3 years have elapsed since the item came into
9
existence; or
10
(ii) when the Ombudsman gives a report to the Minister
11
under section 186J that is about records that include the
12
item;
13
whichever happens earlier.
14
(4) Subsection (3) does not affect the operation of section 185.
15
7 Before Chapter 5
16
Insert:
17
Chapter 4A--Oversight by the
18
Commonwealth Ombudsman
19
20
21
186B Inspection of records
22
(1) The Ombudsman must inspect records of an enforcement agency to
23
determine:
24
(a) the extent of compliance with Chapter 4 by the agency and its
25
officers; and
26
(b) if the agency is a criminal law-enforcement agency--the
27
extent of compliance with Chapter 3 by the agency and its
28
officers.
29
(2) For the purpose of an inspection under this section, the
30
Ombudsman:
31
(a) after notifying the chief officer of the agency, may enter at
32
any reasonable time premises occupied by the agency; and
33
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(b) is entitled to have full and free access at all reasonable times
1
to all records of the agency that are relevant to the inspection;
2
and
3
(c) despite any other law, is entitled to make copies of, and to
4
take extracts from, records of the agency; and
5
(d) may require a member of staff of the agency to give the
6
Ombudsman any information that the Ombudsman considers
7
necessary, being information:
8
(i) that is in the member's possession, or to which the
9
member has access; and
10
(ii) that is relevant to the inspection.
11
(3) Before inspecting records of an enforcement agency under this
12
section, the Ombudsman must give reasonable notice to the chief
13
officer of the agency of when the inspection will occur.
14
(4) The chief officer must ensure that members of staff of the agency
15
give the Ombudsman any assistance the Ombudsman reasonably
16
requires to enable the Ombudsman to perform functions under this
17
section.
18
(5) To avoid doubt, subsection (1) does not require the Ombudsman to
19
inspect all of the records of an enforcement agency that are
20
relevant to the matters referred to in paragraphs (1)(a) and (b).
21
(6) While an operation is being conducted under:
22
(a) a stored communications warrant; or
23
(b) an authorisation under Division 3, 4 or 4A of Part 4-1;
24
the Ombudsman may refrain from inspecting any records of the
25
agency concerned that are relevant to the obtaining or execution of
26
the warrant or authorisation.
27
186C Power to obtain relevant information
28
(1) If the Ombudsman has reasonable grounds to believe that an
29
officer of a particular enforcement agency is able to give
30
information relevant to an inspection under this Chapter of the
31
agency's records, the Ombudsman may:
32
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(a) if the Ombudsman knows the officer's identity--by writing
1
given to the officer, require the officer to do one or both of
2
the following:
3
(i) give the information to the Ombudsman, by writing
4
signed by the officer, at a specified place and within a
5
specified period;
6
(ii) attend before a specified inspecting officer to answer
7
questions relevant to the inspection; or
8
(b) if the Ombudsman does not know the officer's identity--
9
require the chief officer of the agency, or a person nominated
10
by the chief officer, to attend before a specified inspecting
11
officer to answer questions relevant to the inspection.
12
(2) A requirement under subsection (1) to attend before an inspecting
13
officer must specify:
14
(a) a place for the attendance; and
15
(b) a period within which, or a time and day when, the
16
attendance is to occur.
17
The place, and the period or the time and day, must be reasonable
18
having regard to the circumstances in which the requirement is
19
made.
20
(3) A person must not refuse:
21
(a) to attend before a person; or
22
(b) to give information; or
23
(c) to answer questions;
24
when required to do so under this section.
25
Penalty for an offence against this subsection:
Imprisonment
26
for 6 months.
27
186D Ombudsman to be given information and access despite other
28
laws
29
(1) Despite any other law, a person is not excused from giving
30
information, answering a question, or giving access to a document,
31
as and when required under this Chapter, on the ground that giving
32
the information, answering the question, or giving access to the
33
document, as the case may be, would:
34
(a) contravene a law; or
35
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(b) be contrary to the public interest; or
1
(c) might tend to incriminate the person or make the person
2
liable to a penalty.
3
(2) However:
4
(a) the information, the answer, or the fact that the person has
5
given access to the document, as the case may be; and
6
(b) any information or thing (including a document) obtained as
7
a direct or indirect consequence of giving the information,
8
answering the question or giving access to the document;
9
is not admissible in evidence against the person except in a
10
proceeding by way of a prosecution for an offence against
11
section 133, 181A, 181B or 182, or against Part 7.4 or 7.7 of the
12
Criminal Code.
13
(3) Nothing in section 133, 181A, 181B or 182, or in any other law,
14
prevents an officer of an enforcement agency from:
15
(a) giving information to an inspecting officer (whether orally or
16
in writing and whether or not in answer to a question); or
17
(b) giving access to a record of the agency to an inspecting
18
officer;
19
for the purposes of an inspection under this Chapter of the
20
agency's records.
21
(4) Nothing in section 133, 181A, 181B or 182, or in any other law,
22
prevents an officer of an enforcement agency from making a record
23
of information, or causing a record of information to be made, for
24
the purposes of giving the information to a person as permitted by
25
subsection (3).
26
186E Application of Ombudsman Act
27
(1) Section 11A of the Ombudsman Act 1976 does not apply in
28
relation to the exercise or proposed exercise of a power, or the
29
performance or the proposed performance of a function, of the
30
Ombudsman under this Chapter.
31
(2) A reference in section 19 of the Ombudsman Act 1976 to the
32
Ombudsman's operations does not include a reference to anything
33
that an inspecting officer has done or omitted to do under this
34
Chapter.
35
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(3) Subject to section 186D of this Act, subsections 35(2), (3), (4) and
1
(8) of the Ombudsman Act 1976 apply for the purposes of this
2
Chapter and so apply as if:
3
(a) a reference in those subsections to an officer were a reference
4
to an inspecting officer; and
5
(b) a reference in those subsections to information did not
6
include a reference to lawfully accessed information or
7
lawfully intercepted information; and
8
(c) a reference in those subsections to that Act were a reference
9
to this Chapter; and
10
(d) paragraph 35(3)(b) of that Act were omitted; and
11
(e) section 35A of that Act had not been enacted.
12
186F Exchange of information between Ombudsman and State
13
inspecting authorities
14
(1) If the Ombudsman has obtained under this Act information relating
15
to an authority of a State or Territory, the Ombudsman may give
16
the information to another authority of that State or Territory (an
17
inspecting authority) that:
18
(a) has powers under the law of that State or Territory; and
19
(b) has the function of making inspections of a similar kind to
20
those provided for in section 186B of this Act when the
21
inspecting authority is exercising those powers.
22
(2) However, the Ombudsman may give the information only if the
23
Ombudsman is satisfied that giving the information is necessary to
24
enable the inspecting authority to perform its functions in relation
25
to the authority of the State or Territory.
26
(3) The Ombudsman may receive, from an inspecting authority,
27
information relevant to the performance of the Ombudsman's
28
functions under this Act.
29
186G Delegation by Ombudsman
30
(1) The Ombudsman may delegate:
31
(a) to an APS employee responsible to the Ombudsman; or
32
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(b) to a person having similar oversight functions to the
1
Ombudsman under the law of a State or Territory or to an
2
employee responsible to that person;
3
all or any of the Ombudsman's powers under this Chapter other
4
than a power to report to the Minister.
5
(2) A delegate must, upon request by a person affected by the exercise
6
of any power delegated to the delegate, produce the instrument of
7
delegation, or a copy of the instrument, for inspection by the
8
person.
9
186H Ombudsman not to be sued
10
The Ombudsman, an inspecting officer, or a person acting under an
11
inspecting officer's direction or authority, is not liable to an action,
12
suit or proceeding for or in relation to an act done, or omitted to be
13
done, in good faith in the performance or exercise, or the purported
14
performance or exercise, of a function or power conferred by this
15
Chapter.
16
186J Reports
17
(1) The Ombudsman must report to the Minister, in writing, about the
18
results of inspections under section 186B of the records of agencies
19
during a financial year.
20
(2) The report under subsection (1) must be given to the Minister as
21
soon as practicable after the end of the financial year.
22
(3) The Minister must cause a copy of the report to be laid before each
23
House of the Parliament within 15 sitting days of that House after
24
the Minister receives it.
25
(4) The Ombudsman may report to the Minister in writing at any time
26
about the results of an inspection under this Chapter and must do
27
so if so requested by the Minister.
28
(5) If, as a result of an inspection under this Chapter of the records of
29
an enforcement agency, the Ombudsman is of the opinion that an
30
officer of the agency has contravened a provision of this Act, the
31
Ombudsman may include in his or her report on the inspection a
32
report on the contravention.
33
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Note:
In complying with this section, the Ombudsman remains bound by the
1
obligations imposed by sections 133, 181B and 182.
2
(6) The Ombudsman must give a copy of a report under subsection (1)
3
or (4) to the chief officer of any enforcement agency to which the
4
report relates.
5
(7) A report under this section must not include information which, if
6
made public, could reasonably be expected to:
7
(a) endanger a person's safety; or
8
(b) prejudice an investigation or prosecution; or
9
(c) compromise any enforcement agency's operational activities
10
or methodologies.
11
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Part 2
--Application provisions
1
8 Existing inspections by the Ombudsman
2
If an inspection that the Ombudsman was conducting before the
3
commencement of this Schedule under section 152 of the
4
Telecommunications (Interception and Access) Act 1979 was not
5
finished before that commencement, after that commencement:
6
(a) the inspection is taken to be an inspection conducted under
7
Chapter 4A of that Act as amended by this Act; and
8
(b) anything done under that section in relation to the inspection
9
before that commencement is taken to have been done under
10
Chapter 4A of that Act as so amended.
11
9 Reports
12
If:
13
(a) an inspection that the Ombudsman was conducting before the
14
commencement of this Schedule under section 152 of the
15
Telecommunications (Interception and Access) Act 1979 was
16
finished before that commencement; but
17
(b) the inspection was not the dealt with before that
18
commencement in any report to the Minister under
19
section 153 of that Act;
20
section 186J of that Act as amended by this Act applies in relation to the
21
inspection as if it had been conducted under section 186B of that Act as
22
so amended.
23
10 Obligation to keep records
24
(1)
Sections 151 and 186A of the Telecommunications (Interception and
25
Access) Act 1979 as amended by this Act do not apply in relation to
26
anything done before the commencement of this Schedule.
27
(2)
Despite the repeal of sections 150A and 151 of the Telecommunications
28
(Interception and Access) Act 1979 by this Act, those sections continue
29
to apply in relation to things done before the commencement of this
30
Schedule as if those sections had not been repealed.
31