Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2010 - 2011
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
CYBERCRIME LEGISLATION AMENDMENT BILL 2011
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be moved on behalf of the Government
(Circulated by authority of the Attorney-General,
the Honourable Robert McClelland MP)
Cybercrime Legislation amendment bill 2011
OUTLINE
The main purpose of this Bill is to make amendments necessary to facilitate
Australia's accession to the Council of Europe Convention on Cybercrime
(the Convention). The Bill amends the
Telecommunications (Interception and Access) Act 1979 (the TIA Act), the
Criminal Code Act 1995 (the Criminal Code), the Mutual Assistance in
Criminal Matters Act 1987 (the MA Act) and the Telecommunications Act 1997
to ensure that Australian legislation meets all the Convention's
requirements, subject to certain reservations. Only after Australian
legislation is compliant can Australia accede to the Convention.
The Bill makes the following amendments to existing powers which ensure
full compliance with the Convention's obligations:
. requires carriers and carriage service providers (C/CSPs) to
preserve the stored communications and telecommunications data for
specific persons when requested by certain domestic agencies or
when requested by Australian Federal Police on behalf of certain
foreign countries
. ensures Australian agencies are able to obtain and disclose
telecommunications data and stored communications for the purposes
of a foreign investigation
. provides for the extraterritorial operation of certain offences in
the TIA Act
. amends the computer crime offences in the Criminal Code Act 1995 so
that they have adequate scope, and
. creates confidentiality requirements in relation to authorisations
to disclose telecommunications data.
3. The Government amendments to the Bill will:
. ensure that Australian agencies are able to obtain and disclose
telecommunications data for the purpose of a foreign investigation
into an offence which, if the conduct had occurred in Australia,
would have been a serious offence for the purpose of the TIA Act
. delay the ability for interception agencies and the Australian
Security Intelligence Organisation to issue ongoing preservation
notices until 90 days after the Bill receives Royal Assent
. make explicit the particular elements of privacy that authorised
officers must consider before deciding that an authorisation for a
discourse of information or documents is justified
. create new confidential elements of the TIA Act annual report
regarding disclosures to foreign countries
. ensure the completeness of the application provision for Schedule
5, and
. make technical corrections.
FINANCIAL IMPACT STATEMENT
The amendments made by the Cybercrime Legislation Amendment Bill 2011 will
have no financial impact.
NOTES ON CLAUSES
Amendments 1 to 6 - Schedule 1
Amendments 1 to 6 are technical corrections to reflect the fact that
interception agencies are a subset of enforcement agencies within the
existing drafting of the TIA Act. These technical corrections do not
impact on the operation of the respective provisions.
Amendment 7 - Part 3-1A Transitional Provisions
Amendment 7 inserts a transitional provision into the TIA Act which is
applicable to new Part 3-1A - Preserving stored communications. The
transitional provision prevents an interception agency or the Australian
Security Intelligence Organisation issuing an ongoing preservation notice
until 90 days after the Bill receives Royal Assent. The purpose of this
provision to give relevant industry participants an extended period of time
in which to ensure they can comply with requests for ongoing preservation.
This amendment intends to achieve the same effect as delayed commencement
of the ongoing preservation notice regime. Delayed commencement was not
possible due to the operation of section 14B of the Acts Interpretation Act
1901.
Amendment 8 - Section 15D
Amendment 8 amends proposed new section 15D of the Mutual Assistance in
Criminal Matters Act 1987. New section 15D outlines how the Attorney-
General can respond to a request by a foreign country for assistance in
relation to telecommunications data. Subsection 15D(3) sets out when the
Attorney-General can authorise the provision of assistance. Amendment 8
will amend subsection 15D(3) to include an additional circumstance when the
Attorney-General can authorise provision of assistance. Paragraph
15D(3)(b) currently only permits the Attorney-General to authorise
disclosure of documents or information to a foreign country for a foreign
offence that is punishable by at least 3 years imprisonment.
Amendment 8 omits paragraph 15D(3)(b) and inserts a new paragraph
15D(3)(b). The amended paragraph 15D(3)(b) will continue to allow the
Attorney-General to authorise the disclosure of documents or information to
a foreign country under section 180B of the TIA Act for a foreign offence
that is punishable by at least 3 years imprisonment, imprisonment for life
or the death penalty, but will also allow authorisation if the conduct
constituting the offence would have amounted to a serious offence if the
conduct had occurred in Australia. "Serious offence" is defined in section
5D of the TIA Act. This change ensures that the threshold for offences for
which prospective telecommunications data is available to foreign countries
is consistent with the threshold for domestic offences. Consistency in the
approach to the availability of this information for domestic and foreign
purposes is a requirement of article 33(2) of the Convention.
Amendment 9 - subsection 180B(3)
Proposed new subsection 180B will set out when an authorised officer is
able to authorise the disclosure of prospective information or documents
for the enforcement of the criminal law of a foreign country. The Attorney-
General must have authorised the making of the authorisation under section
15D of the MA Act and the officer must be satisfied that the disclosure is
reasonably necessary for the investigation of an offence against a law of a
foreign country, and is appropriate in all the circumstances.
Amendment 9 omits paragraph 180B(3)(b) and inserts a new paragraph
180B(3)(b) which will continue to allow disclosure that is reasonably
necessary for the investigation of a foreign offence that is punishable by
3 years imprisonment, imprisonment for life or the death penalty. However,
it will also allow for authorisation of the disclosure where it is
reasonably necessary for the investigation of an offence where the conduct
constituting the offence would have amounted to a serious offence if the
conduct had occurred in Australia. "Serious offence" is defined in section
5D of the TIA Act. This change ensures consistency of thresholds and
access for domestic and foreign purposes and will ensure Australia is
compliant with article 33(2) of the Convention.
Amendment 10 - subsection 180B(6)
Proposed new subsection 180B(6) sets out the process for extending an
authorisation for prospective information or documents made under
subsection 180B(2). Amendment 10 omits paragraph 180B(6)(a) and
inserts a new paragraph 180B(6)(a) which will continue to allow
extension of an authorisation where it is reasonably necessary for the
investigation of a foreign offence that is punishable by 3 years
imprisonment, imprisonment for life or the death penalty. However, it
will also allow for extension of the authorisation where it is
reasonably necessary for the investigation of an offence where the
conduct constituting the offence would have amounted to a serious
offence if the conduct had occurred in Australia. "Serious offence" is
defined in section 5D of the TIA Act This change ensures consistency
of thresholds and access for domestic and foreign purposes and will
ensure Australia is compliant with article 33(2) of the Convention.
Amendment 11 - subsection 180B(8)
Proposed new subsection 180B(8) will outline when prospective
information or documents disclosed to the AFP as a result of an
authorisation under subsection 180B(2) will be able to be disclosed to
a foreign law enforcement agency. Amendment 11 omits paragraph
180B(8)(a) and inserts a new paragraph 180B(8)(a) which will continue
to allow for disclosure where it is reasonably necessary for the
investigation of a foreign offence that is punishable by 3 years
imprisonment, imprisonment for life or the death penalty. However, it
will also allow for disclosure where it is reasonably necessary for the
investigation of an offence where the conduct constituting the offence
would have amounted to a serious offence if the conduct had occurred in
Australia. Serious offence is defined in section 5D of the TIA Act.
This change ensures consistency of thresholds and access for domestic
and foreign purposes and will ensure Australia is compliant with
article 33(2) of the Convention.
Amendment 12 - section 180F
Amendment 12 provides detailed guidance to authorised officers about the
particulars of weighing and balancing privacy considerations prior to
making any authorisation under Division 4 and 4A of Part 4-1 of the TIA
Act. This will ensure that privacy considerations are taken into account
for every disclosure of historical and prospective telecommunications data
under Division 4 and 4A. This amendment is proposed in response to
recommendation 4 of the Joint Select Committee on Cyber-Safety's Review of
the Cybercrime Legislation Amendment Bill 2011.
The authorised officer is required to decide whether the foreseeable
privacy impacts, including to third parties, of a disclosure are
justifiable having regard to the magnitude or nature of that privacy
impact; the likely relevance or useful to the agency or investigation of
the information or documents which are sought to be disclosed; and the
reason for the proposed authorisation. Paragraph (b) refers to particular
reason for the proposed authorisation, such as the nature and gravity of
the crime being investigated or the particulars of the search for the
missing person.
This requirement is an extension of the current requirement in subsection
180(5) which applies to an authorisation for the disclosure of prospective
telecommunications data for domestic purposes (subsection 180(5) will be
repealed by the Bill).
For the purposes of the Bill, privacy is intended to be interpreted more
broadly than is considered by the Privacy Act 1988, which regulates the
collection, use, disclosure and storage of personal information, as defined
in that Act. The Bill's intent is for wider considerations to be made
prior to making an authorisation.
Amendment 13 - paragraph 186(1)(c)
Amendment 13 specifies that the head of the AFP must give the Minister
an annual report of instances where the AFP has disclosed existing or
prospective information or documents to a foreign country (under
sections 180A, 180B, 180C and 180D of the TIA Act). The information
should include the number of disclosures that were made to each
country. This strengthened reporting requirement is proposed in
response to recommendation 9 of the Joint Select Committee on Cyber-
Safety's Review of the Cybercrime Legislation Amendment Bill 2011.
Amendment 14- Subsection 186(2)
Subsection 186(2) requires the Minister to prepare a report noting all
of the authorisations for access to existing and prospective
information or documents that were granted under sections 178, 178A,
179 and 180 of the TIA Act. Amendment 3 excludes from the public
reporting requirement instances where the AFP has disclosed existing or
prospective information or documents to a foreign country (under
sections 180A, 180B, 180C and 180D of the TIA Act). This exclusion is
consistent with international practice that police to police assistance
and assistance in response to a mutual assistance request remain
confidential. Making this information publicly available could
compromise international investigations and the strength of Australia's
cooperative relationships with foreign law enforcement agencies.
Amendment 15- Application of amendments
Amendment 15 repeals the existing applications provision to facilitate
the addition of a more robust version.
Amendment 16 - Application of amendment
Amendment 16 clarifies that the change to the offences in subsection
7(1) and section 63 apply after Schedule 5 comes into force. The
application provision also clarifies that the change to allow real-time
traffic data in all the circumstances in which interception is
available applies only in relation to notices made after the
commencement of this schedule.
Schedule 5 does not retrospectively criminalise any activity.
Index]
[Search]
[Download]
[Bill]
[Help]