Commonwealth Numbered Acts

TELECOMMUNICATIONS (INTERCEPTION AND ACCESS) AMENDMENT (DATA RETENTION) ACT 2015 (NO. 39, 2015) - SCHEDULE 1

Part 1 -- Main amendments

Telecommunications (Interception and Access) Act 1979

1  After Part 5-1

Insert:

Part 5-1A -- Data retention

Division 1 -- Obligation to keep information and documents

187A   Service providers must keep certain information and documents

             (1)  A person (a service provider ) who operates a service to which this Part applies (a relevant service ) must keep, or cause to be kept, in accordance with section 187BA and for the period specified in section 187C:

                     (a)  information of a kind specified in or under section 187AA; or

                     (b)  documents containing information of that kind;

relating to any communication carried by means of the service.

Note 1:       Subsection (3) sets out the services to which this Part applies.

Note 2:       Section 187B removes some service providers from the scope of this obligation, either completely or in relation to some services they operate.

Note 3:       Division 3 provides for exemptions from a service provider's obligations under this Part.

             (3)  This Part applies to a service if:

                     (a)  it is a service for carrying communications, or enabling communications to be carried, by means of guided or unguided electromagnetic energy or both; and

                     (b)  it is a service:

                              (i)  operated by a carrier; or

                             (ii)  operated by an internet service provider (within the meaning of Schedule 5 to the Broadcasting Services Act 1992 ); or

                            (iii)  of a kind for which a declaration under subsection (3A) is in force; and

                     (c)  the person operating the service owns or operates, in Australia, infrastructure that enables the provision of any of its relevant services;

but does not apply to a broadcasting service (within the meaning of the Broadcasting Services Act 1992 ).

          (3A)  The Minister may, by legislative instrument, declare a service to be a service to which this Part applies.

          (3B)  A declaration under subsection (3A):

                     (a)  comes into force when it is made, or on such later day as is specified in the declaration; and

                     (b)  ceases to be in force at the end of the period of 40 sitting days of a House of the Parliament after the declaration comes into force.

          (3C)  If a Bill is introduced into either House of the Parliament that includes an amendment of subsection (3), the Minister:

                     (a)  must refer the amendment to the Parliamentary Joint Committee on Intelligence and Security for review; and

                     (b)  must not in that referral specify, as the period within which the Committee is to report on its review, a period that will end earlier than 15 sitting days of a House of the Parliament after the introduction of the Bill.

             (4)  This section does not require a service provider to keep, or cause to be kept:

                     (a)  information that is the contents or substance of a communication; or

Note:       This paragraph puts beyond doubt that service providers are not required to keep information about telecommunications content.

                     (b)  information that:

                              (i)  states an address to which a communication was sent on the internet, from a telecommunications device, using an internet access service provided by the service provider; and

                             (ii)  was obtained by the service provider only as a result of providing the service; or

Note:       This paragraph puts beyond doubt that service providers are not required to keep information about subscribers' web browsing history.

                     (c)  information to the extent that it relates to a communication that is being carried by means of another service:

                              (i)  that is of a kind referred to in paragraph (3)(a); and

                             (ii)  that is operated by another person using the relevant service operated by the service provider;

                            or a document to the extent that the document contains such information; or

Note:       This paragraph puts beyond doubt that service providers are not required to keep information or documents about communications that pass "over the top" of the underlying service they provide, and that are being carried by means of other services operated by other service providers.

                     (d)  information that the service provider is required to delete because of a determination made under section 99 of the Telecommunications Act 1997 , or a document to the extent that the document contains such information; or

                     (e)  information about the location of a telecommunications device that is not information used by the service provider in relation to the relevant service to which the device is connected.

             (5)  Without limiting subsection (1), for the purposes of this section:

                     (a)  an attempt to send a communication by means of a relevant service is taken to be the sending of a communication by means of the service, if the attempt results in:

                              (i)  a connection between the telecommunications device used in the attempt and another telecommunications device; or

                             (ii)  an attempted connection between the telecommunications device used in the attempt and another telecommunications device; or

                            (iii)  a conclusion being drawn, through the operation of the service, that a connection cannot be made between the telecommunications device used in the attempt and another telecommunications device; and

                     (b)  an untariffed communication by means of a relevant service is taken to be a communication by means of the service.

             (6)  To avoid doubt, if information that subsection (1) requires a service provider to keep in relation to a communication is not created by the operation of a relevant service, subsection (1) requires the service provider to use other means to create the information, or a document containing the information.

187AA   Information to be kept

             (1)  The following table sets out the kinds of information that a service provider must keep, or cause to be kept, under subsection 187A(1):

             (2)  The Minister may, by legislative instrument, make a declaration modifying (including by adding, omitting or substituting) the table in subsection (1), or that table as previously modified under this subsection.

             (3)  A declaration under subsection (2):

                     (a)  comes into force when it is made, or on such later day as is specified in the declaration; and

                     (b)  ceases to be in force at the end of the period of 40 sitting days of a House of the Parliament after the declaration comes into force.

             (4)  If a Bill is introduced into either House of the Parliament that includes an amendment of subsection 187A(4) or subsection (1) or (5) of this section, the Minister:

                     (a)  must refer the amendment to the Parliamentary Joint Committee on Intelligence and Security for review; and

                     (b)  must not in that referral specify, as the period within which the Committee is to report on its review, a period that will end earlier than 15 sitting days of a House of the Parliament after the introduction of the Bill.

             (5)  For the purposes of items 2, 3, 4 and 6 of the table in subsection (1) and any modifications of those items under subsection (2), 2 or more communications that together constitute a single communications session are taken to be a single communication.

187B   Certain service providers not covered by this Part

             (1)  Subsection 187A(1) does not apply to a service provider (other than a carrier that is not a carriage service provider) in relation to a relevant service that it operates if:

                     (a)  the service:

                              (i)  is provided only to a person's immediate circle (within the meaning of section 23 of the Telecommunications Act 1997 ); or

                             (ii)  is provided only to places that, under section 36 of that Act, are all in the same area; and

                     (b)  the service is not subject to a declaration under subsection (2) of this section.

             (2)  The Communications Access Co-ordinator may declare that subsection 187A(1) applies in relation to a relevant service that a service provider operates.

          (2A)  Before making the declaration, the Communications Access Co-ordinator may consult the Privacy Commissioner.

             (3)  In considering whether to make the declaration, the Communications Access Co-ordinator must have regard to:

                     (a)  the interests of law enforcement and national security; and

                     (b)  the objects of the Telecommunications Act 1997 ; and

                   (ba)  the objects of the Privacy Act 1988 ; and

                   (bb)  any submissions made by the Privacy Commissioner because of the consultation under subsection (2A); and

                     (c)  any other matter that the Communications Access Co-ordinator considers relevant.

             (4)  The declaration must be in writing.

             (5)  A declaration made under subsection (2) is not a legislative instrument.

             (6)  As soon as practicable after making a declaration under subsection (2), the Communications Access Co-ordinator must give written notice of the declaration to the Minister.

             (7)  As soon as practicable after receiving the notice under subsection (6), the Minister must give written notice of the declaration to the Parliamentary Joint Committee on Intelligence and Security.

187BA   Ensuring the confidentiality of information

                   A service provider must protect the confidentiality of information that, or information in a document that, the service provider must keep, or cause to be kept, under section 187A by:

                     (a)  encrypting the information; and

                     (b)  protecting the information from unauthorised interference or unauthorised access.

187C   Period for keeping information and documents

             (1)  The period for which a service provider must keep, or cause to be kept, information or a document under section 187A is:

                     (a)  if the information is about, or the document contains information about, a matter of a kind described in paragraph (a) or (b) in column 2 of item 1 of the table in subsection 187AA(1)--the period:

                              (i)  starting when the information or document came into existence; and

                             (ii)  ending 2 years after the closure of the account to which the information or document relates; or

                     (b)  otherwise--the period:

                              (i)  starting when the information or document came into existence; and

                             (ii)  ending 2 years after it came into existence.

             (2)  However, the regulations may prescribe that, in relation to a specified matter of a kind described in paragraph (a) or (b) in column 2 of item 1 of the table in subsection 187AA(1), the period under subsection (1) of this section is the period referred to in paragraph (1)(b) of this section.

             (3)  This section does not prevent a service provider from keeping information or a document for a period that is longer than the period provided under this section.

Note:          Division 3 provides for reductions in periods specified under this section.

Division 2 -- Data retention implementation plans

187D   Effect of data retention implementation plans

                   While there is in force a data retention implementation plan for a relevant service operated by a service provider:

                     (a)  the service provider must comply with the plan in relation to communications carried by means of that service; but

                     (b)  the service provider is not required to comply with subsection 187A(1) (or section 187BA or 187C ) in relation to those communications.

187E   Applying for approval of data retention implementation plans

             (1)  A service provider may apply to the Communications Access Co-ordinator for approval of a data retention implementation plan for one or more relevant services operated by the service provider.

             (2)  The plan must specify, in relation to each such service:

                     (a)  an explanation of the current practices for keeping, and ensuring the confidentiality of, information and documents that section 187A would require to be kept, if the plan were not in force; and

                     (b)  details of the interim arrangements that the service provider proposes to be implemented, while the plan is in force, for keeping, and ensuring the confidentiality of, such information and documents (to the extent that the information and documents will not be kept in compliance with section 187A (and sections 187BA and 187C )); and

                     (c)  the day by which the service provider will comply with section 187A (and sections 187BA and 187C ) in relation to all such information and documents, except to the extent that any decisions under Division 3 apply.

             (3)  The day specified under paragraph (2)(c) must not be later than the day on which the plan would, if approved, cease to be in force under section 187H in relation to the service.

             (4)  The plan must also specify:

                     (a)  any relevant services, operated by the service provider, that the plan does not cover; and

                     (b)  the contact details of the officers or employees of the service provider in relation to the plan.

187F   Approval of data retention implementation plans

             (1)  If, under section 187E, a service provider applies for approval of a data retention implementation plan, the Communications Access Co-ordinator must:

                     (a)  approve the plan and notify the service provider of the approval; or

                     (b)  give the plan back to the service provider with a written request for the service provider to amend the plan to take account of specified matters.

             (2)  Before making a decision under subsection (1), the Communications Access Co-ordinator must take into account:

                     (a)  the desirability of achieving substantial compliance with section 187A (and sections 187BA and 187C ) as soon as practicable; and

                     (b)  the extent to which the plan would reduce the regulatory burden imposed on the service provider by this Part; and

                     (c)  if, at the time the Co-ordinator receives the application, the service provider is contravening section 187A (or section 187BA or 187C ) in relation to one or more services covered by the application--the reasons for the contravention; and

                     (d)  the interests of law enforcement and national security; and

                     (e)  the objects of the Telecommunications Act 1997 ; and

                      (f)  any other matter that the Co-ordinator considers relevant.

             (3)  If the Communications Access Co-ordinator does not, within 60 days after the day the Co-ordinator receives the application:

                     (a)  make a decision on the application, and

                     (b)  communicate to the applicant the decision on the application;

the Co-ordinator is taken, at the end of that period of 60 days, to have made the decision that the service provider applied for, and to have notified the service provider accordingly.

             (4)  A decision that is taken under subsection (3) to have been made in relation to a service provider that applied for the decision has effect only until the Communications Access Co-ordinator makes, and communicates to the service provider, a decision on the application.

187G   Consultation with agencies and the ACMA

             (1)  As soon as practicable after receiving an application under section 187E to approve a data retention implementation plan (the original plan ), the Communications Access Co-ordinator must:

                     (a)  give a copy of the plan to the enforcement agencies and security authorities that, in the opinion of the Co-ordinator, are likely to be interested in the plan; and

                     (b)  invite each such enforcement agency or security authority to provide comments on the plan to the Co-ordinator.

The Co-ordinator may give a copy of the plan to the ACMA.

Request for amendment of original plan

             (2)  If:

                     (a)  the Communications Access Co-ordinator receives a comment from an enforcement agency or security authority requesting an amendment of the original plan; and

                     (b)  the Co-ordinator considers the request to be a reasonable one;

the Co-ordinator:

                     (c)  must request that the service provider make the amendment within 30 days (the response period ) after receiving the comment or summary; and

                     (d)  may give the service provider a copy of the comment or a summary of the comment.

Response to request for amendment of original plan

             (3)  The service provider must respond to a request for an amendment of the original plan either:

                     (a)  by indicating its acceptance of the request, by amending the original plan appropriately and by giving the amended plan to the Communications Access Co-ordinator within the response period; or

                     (b)  by indicating that it does not accept the request and providing its reasons for that non-acceptance.

The ACMA's role

             (4)  If the service provider indicates that it does not accept a request for an amendment of the original plan, the Communications Access Co-ordinator must:

                     (a)  refer the request and the service provider's response to the ACMA; and

                     (b)  request the ACMA to determine whether any amendment of the original plan is required.

             (5)  The ACMA must then:

                     (a)  determine in writing that no amendment of the original plan is required in response to the request for the amendment; or

                     (b)  if, in the opinion of the ACMA:

                              (i)  the request for the amendment is a reasonable one; and

                             (ii)  the service provider's response to the request for the amendment is not reasonable;

                            determine in writing that the original plan should be amended in a specified manner and give a copy of the determination to the service provider.

Co-ordinator to approve amended plan or to refuse approval

             (6)  The Communications Access Co-ordinator must:

                     (a)  if, on receipt of a determination under paragraph (5)(b), the service provider amends the original plan to take account of that determination and gives the amended plan to the Communications Access Co-ordinator--approve the plan as amended, and notify the service provider of the approval; or

                     (b)  otherwise--refuse to approve the plan, and notify the service provider of the refusal.

ACMA determination not a legislative instrument

             (7)  A determination made under subsection (5) is not a legislative instrument.

187H   When data retention implementation plans are in force

             (1)  A data retention implementation plan for a relevant service operated by a service provider:

                     (a)  comes into force when the Communications Access Co-ordinator notifies the service provider of the approval of the plan; and

                     (b)  ceases to be in force in relation to that service:

                              (i)  if the service provider was operating the service at the commencement of this Part--at the end of the implementation phase for this Part; or

                             (ii)  if the service provider was not operating the service at the commencement of this Part--at the end of the period of 18 months starting on the day the service provider started to operate the service after that commencement.

             (2)  The implementation phase for this Part is the period of 18 months starting on the commencement of this Part.

187J   Amending data retention implementation plans

             (1)  If a service provider's data retention implementation plan is in force, it may be amended only if:

                     (a)  the service provider applies to the Communications Access Co-ordinator for approval of the amendment, and the Co-ordinator approves the amendment; or

                     (b)  the Co-ordinator makes a request to the service provider for the amendment to be made, and the service provider agrees to the amendment.

             (2)  Section 187F applies in relation to approval of the amendment under paragraph (1)(a) as if the application for approval of the amendment were an application under section 187E for approval of a data retention implementation plan.

             (3)  An amendment of a data retention implementation plan:

                     (a)  comes into force when:

                              (i)  if paragraph (1)(a) applies--the Co-ordinator notifies the service provider of the approval of the amendment; or

                             (ii)  if paragraph (1)(b) applies--the service provider notifies the Co-ordinator of the service provider's agreement to the amendment; but

                     (b)  does not effect when the plan ceases to be in force under paragraph 187H(1)(b).

Division 3 -- Exemptions

187K   The Communications Access Co-ordinator may grant exemptions or variations

Decision to exempt or vary

             (1)  The Communications Access Co-ordinator may:

                     (a)  exempt a specified service provider from the obligations imposed on the service provider under this Part, either generally or in so far as they relate to a specified kind of relevant service; or

                     (b)  vary the obligations imposed on a specified service provider under this Part, either generally or in so far as they relate to a specified kind of relevant service; or

                     (c)  vary, in relation to a specified service provider, a period specified in section 187C, either generally or in relation to information or documents that relate to a specified kind of relevant service.

A variation must not impose obligations that would exceed the obligations to which a service provider would otherwise be subject under sections 187A and 187C.

             (2)  The decision must be in writing.

             (3)  The decision may be:

                     (a)  unconditional; or

                     (b)  subject to such conditions as are specified in the decision .

             (4)  A decision made under subsection (1) is not a legislative instrument.

Effect of applying for exemption or variation

             (5)  If a service provider applies in writing to the Communications Access Co-ordinator for a particular decision under subsection (1) relating to the service provider:

                     (a)  the Co-ordinator:

                              (i)  must give a copy of the application to the enforcement agencies and security authorities that, in the opinion of the Co-ordinator, are likely to be interested in the application; and

                             (ii)  may give a copy of the application to the ACMA; and

                     (b)  if the Co-ordinator does not, within 60 days after the day the Co-ordinator receives the application:

                              (i)  make a decision on the application, and

                             (ii)  communicate to the applicant the decision on the application;

                            the Co-ordinator is taken, at the end of that period of 60 days, to have made the decision that the service provider applied for.

             (6)  A decision that is taken under paragraph (5)(b) to have been made in relation to a service provider that applied for the decision has effect only until the Communications Access Co-ordinator makes, and communicates to the service provider, a decision on the application.

Matters to be taken into account

             (7)  Before making a decision under subsection (1) in relation to a service provider, the Communications Access Co-ordinator must take into account:

                     (a)  the interests of law enforcement and national security; and

                     (b)  the objects of the Telecommunications Act 1997 ; and

                     (c)  the service provider's history of compliance with this Part; and

                     (d)  the service provider's costs, or anticipated costs, of complying with this Part; and

                     (e)  any alternative data retention or information security arrangements that the service provider has identified.

             (8)  The Communications Access Co-ordinator may take into account any other matter he or she considers relevant.

187KA   Review of exemption or variation decisions

             (1)  A service provider may apply in writing to the ACMA for review of a decision under subsection 187K(1) relating to the service provider.

             (2)  The ACMA must:

                     (a)  confirm the decision; or

                     (b)  substitute for that decision another decision that could have been made under subsection 187K(1).

A substituted decision under paragraph (b) has effect (other than for the purposes of this section) as if it were a decision of the Communications Access Co-ordinator under subsection 187K(1).

             (3)  Before considering its review of the decision under subsection 187K(1), the ACMA must give a copy of the application to:

                     (a)  the Communications Access Co-ordinator; and

                     (b)  any enforcement agencies and security authorities that were given, under subparagraph 187K(5)(a)(i), a copy of the application for the decision under review; and

                     (c)  any other enforcement agencies and security authorities that, in the opinion of the ACMA, are likely to be interested in the application.

Matters to be taken into account

             (4)  Before making a decision under subsection (2) in relation to a service provider, the ACMA must take into account:

                     (a)  the interests of law enforcement and national security; and

                     (b)  the objects of the Telecommunications Act 1997 ; and

                     (c)  the service provider's history of compliance with this Part; and

                     (d)  the service provider's costs, or anticipated costs, of complying with this Part; and

                     (e)  any alternative data retention or information security arrangements that the service provider has identified.

             (5)  The ACMA may take into account any other matter it considers relevant.

Division 4 -- Miscellaneous

187KB   Commonwealth may make a grant of financial assistance to service providers

             (1)  The Commonwealth may make a grant of financial assistance to a service provider for the purpose of assisting the service provider to comply with the service provider's obligations under this Part.

             (2)  The terms and conditions on which that financial assistance is granted are to be set out in a written agreement between the Commonwealth and the service provider.

             (3)  An agreement under subsection (2) may be entered into on behalf of the Commonwealth by the Minister.

187L   Confidentiality of applications

             (1)  If the Communications Access Co-ordinator receives a service provider's application under section 187E for approval of a data retention implementation plan, or application for a decision under subsection 187K(1), the Co-ordinator must:

                     (a)  treat the application as confidential; and

                     (b)  ensure that it is not disclosed to any other person or body (other than the ACMA, an enforcement agency or a security authority) without the written permission of the service provider.

          (1A)  If the ACMA receives a service provider's application under section 187KA for review of a decision under subsection 187K(1), the ACMA must:

                     (a)  treat the application as confidential; and

                     (b)  ensure that it is not disclosed to any other person or body (other than the Communications Access Co-ordinator, an enforcement agency or a security authority) without the written permission of the service provider.

             (2)  The ACMA, the Communications Access Co-ordinator, an enforcement agency or a security authority must, if it receives under subsection 187G(1), paragraph 187K(5)(a) or subsection 187KA(3) a copy of a service provider's application:

                     (a)  treat the copy as confidential; and

                     (b)  ensure that it is not disclosed to any other person or body without the written permission of the service provider.

187LA   Application of the Privacy Act 1988

             (1)  The Privacy Act 1988 applies in relation to a service provider, as if the service provider were an organisation within the meaning of that Act, to the extent that the activities of the service provider relate to retained data.

             (2)  Information that is kept under this Part, or information that is in a document kept under this Part is taken, for the purposes of the Privacy Act 1988 , to be personal information about an individual if the information relates to:

                     (a)  the individual; or

                     (b)  a communication to which the individual is a party.

187M   Pecuniary penalties and infringement notices

                   Subsection 187A(1) and paragraph 187D(a) are civil penalty provisions for the purposes of the Telecommunications Act 1997 .

Note:          Parts 31 and 31B of the Telecommunications Act 1997 provide for pecuniary penalties and infringement notices for contraventions of civil penalty provisions.

187N   Review of operation of Part

             (1)  The Parliamentary Joint Committee on Intelligence and Security must review the operation of this Part.

          (1A)  The review:

                     (a)  must start on or before the second anniversary of the end of the implementation phase; and

                     (b)  must be concluded on or before the third anniversary of the end of the implementation phase.

             (2)  The Committee must give the Minister a written report of the review.

             (3)  Until the review is completed, the head (however described) of an enforcement agency must keep:

                     (a)  all of the documents that he or she is required to retain under section 185; and

                     (b)  all of the information that he or she is required, by paragraphs 186(1)(e) to (k), to include in a report under subsection 186(1);

relating to the period starting on the commencement of this Part and ending when the review is completed.

             (4)  Until the review is completed, the Director-General of Security must keep:

                     (a)  all of the authorisations made under Division 3 of Part 4-1; and

                     (b)  all of the information that he or she is required, by paragraphs 94(2A)(c) to (j) of the Australian Security Intelligence Organisation Act 1979 , to include in a report referred to in subsection 94(1) of that Act;

relating to the period starting on the commencement of this Part and ending when the review is completed.

             (5)  Subsections (3) and (4) do not limit any other obligation to keep information under this Act or another law.

187P   Annual reports

             (1)  The Minister must, as soon as practicable after each 30 June, cause to be prepared a written report on the operation of this Part during the year ending on that 30 June.

          (1A)  Without limiting the matters that may be included in a report under subsection (1), it must include information about:

                     (a)  the costs to service providers of complying with this Part; and

                     (b)  the use of data retention implementation plans approved under Division 2 of this Part.

             (2)  A report under subsection (1) must be included in the report prepared under subsection 186(2) relating to the year ending on that 30 June.

             (3)  A report under subsection (1) must not be made in a manner that is likely to enable the identification of a person.

Part 2 -- Other amendments

Australian Security Intelligence Organisation Act 1979

1A  Section 4

Insert:

"retained data " has the same meaning as in the Telecommunications (Interception and Access) Act 1979 .

1B  Paragraphs 94(2A)(a) and (b)

Omit "year", substitute "period".

1C  At the end of subsection 94(2A)

Add:

             ; and (c)  the number of authorisations made during the period under section 175 and subsection 176(3) of the Telecommunications (Interception and Access) Act 1979 ; and

                     (d)  the purposes for which those authorisations were made; and

                     (e)  the lengths of time for which the information or documents that were, or would have been, covered by those authorisations had been held when access was sought; and

                      (f)  the number of those authorisations that related to retained data that included information of a kind referred to in item 1 of the table in subsection 187AA(1) of that Act; and

                     (g)  the number of those authorisations that related to retained data that included information of a kind referred to in item 2, 3, 4, 5 or 6 of the table in subsection 187AA(1) of that Act; and

                     (h)  the number of those authorisations that were made under journalist information warrants issued under Subdivision B of Division 4C of Part 4-1 of that Act; and

                      (i)  the number of journalist information warrants issued under that Subdivision during the period; and

                      (j)  information of a kind declared under subsection (2C) of this section.

1D  After subsection 94(2A)

Insert:

          (2B)  A report under subsection (1) is to set out the matters referred to in paragraph (2A)(e) by specifying:

                     (a)  in relation to each of 8 successive periods of 3 months, the number of the authorisations sought for information or documents held for lengths of time included in that period; and

                     (b)  the number of the authorisations sought for information or documents held for lengths of time exceeding 24 months.

          (2C)  The Minister may, by legislative instrument, declare kinds of information that are to be set out in a report under subsection (1).

Intelligence Services Act 2001

1E  Section 3

Insert:

"retained data activity " means an activity relating to information, or documents, that a service provider has been required to keep under Part 5-1A of the Telecommunications (Interception and Access) Act 1979 .

"service provider " has the same meaning as in the Telecommunications (Interception and Access) Act 1979 .

1F  After paragraph 29(1)(bb)

Insert:

                   (bc)  to conduct the review under section 187N of the Telecommunications (Interception and Access) Act 1979 ; and

                   (bd)  subject to subsection (5), to review any matter that:

                              (i)  relates to the retained data activities of ASIO; and

                             (ii)  is included, under paragraph 94(2A)(c), (d), (e), (f), (g), (h), (i) or (j) of the Australian Security Intelligence Organisation Act 1979 , in a report referred to in subsection 94(1) of that Act; and

                   (be)  subject to subsection (5), to review any matter that:

                              (i)  relates to the retained data activities of the AFP in relation to offences against Part 5.3 of the Criminal Code ; and

                             (ii)  is set out, under paragraph 186(1)(e), (f), (g), (h), (i), (j) or (k) of the Telecommunications (Interception and Access) Act 1979 , in a report under subsection 186(1) of that Act; and

1G  At the end of section 29

Add:

             (4)  Subject to subsection (5), paragraphs (3)(c) and (k) do not apply to things done in the performance of the Committee's functions under paragraphs (1)(bd) and (be).

             (5)  The Committee's functions under paragraphs (1)(bd) and (be):

                     (a)  are to be performed for the sole purpose of assessing, and making recommendations on, the overall operation and effectiveness of Part 5-1A of the Telecommunications (Interception and Access) Act 1979 ; and

                     (b)  do not permit reviewing the retained data activities of service providers; and

                     (c)  may not be performed for any purpose other than that set out in paragraph (a).

Note:          The performance of the Committee's functions under paragraphs (1)(bd) and (be) are also subject to the requirements of Schedule 1.

Privacy Act 1988

1H  Subsection 6(1) (at the end of the definition of personal information )

Add:

Note:          Section 187LA of the Telecommunications (Interception and Access) Act 1979 extends the meaning of personal information to cover information kept under Part 5-1A of that Act.

1J  Subsection 6C(1) (note)

Repeal the note, substitute:

Note 1:       Under section 187LA of the Telecommunications (Interception and Access) Act 1979 , service providers are, in relation to their activities relating to retained data, treated as organisations for the purposes of this Act.

Note: 2:      Regulations may prescribe an instrumentality by reference to one or more classes of instrumentality. See subsection 13(3) of the Legislative Instruments Act 2003 .

Telecommunications Act 1997

2  Section 7 (at the end of the definition of civil penalty provision )

Add:

               ; or (c)  a provision of the Telecommunications (Interception and Access) Act 1979 that is declared by that Act to be a civil penalty provision for the purposes of this Act.

3  Subsection 105(5A)

Repeal the subsection, substitute:

          (5A)  The ACMA must monitor, and report each financial year to the Minister on:

                     (a)  the operation of Part 14 and on the costs of compliance with the requirements of that Part; and

                     (b)  without limiting paragraph (a), the costs of compliance with the requirements of Part 5-1A of the Telecommunications (Interception and Access) Act 1979 (about data retention).

3A  After subsection 280(1A)

Insert:

          (1B)  Subject to subsection (1C), paragraph (1)(b) does not apply to a disclosure of information or a document if:

                     (a)  the disclosure is required or authorised because of:

                              (i)  a subpoena; or

                             (ii)  a notice of disclosure; or

                            (iii)  an order of a court;

                            in connection with a civil proceeding; and

                     (b)  the information or document is kept, by a service provider (within the meaning of the Telecommunications (Interception and Access) Act 1979 ), solely for the purpose of complying with Part 5-1A of that Act; and

                     (c)  the information or document is not used or disclosed by the service provider for any purpose other than one or more of the following purposes:

                              (i)  complying with Part 5-1A of that Act;

                             (ii)  complying with the requirements of warrants under Chapters 2 and 3 of that Act or authorisations under Chapter 4 of that Act;

                            (iii)  complying with requests or requirements to make disclosures provided for by sections 284 to 288 of this Act;

                            (iv)  providing persons with access to their personal information in accordance with the Privacy Act 1988 ;

                             (v)  a purpose prescribed by the regulations;

                            (vi)  a purpose incidental to any of the purposes referred to in subparagraphs (i) to (v).

          (1C)  Subsection (1B) does not apply:

                     (a)  in circumstances of a kind prescribed by the regulations; or

                     (b)  to a disclosure to an enforcement agency (within the meaning of the Telecommunications (Interception and Access) Act 1979 ); or

                     (c)  to a disclosure that occurs during the implementation phase (within the meaning of that Act).

3B  Section 281

Before "Division 2", insert "(1)".

3C  At the end of section 281

Add:

             (2)  Subject to subsection (3), this section does not apply to a disclosure of information or a document by a person as a witness in a civil proceeding if the information or document:

                     (a)  is kept, by a service provider (within the meaning of the Telecommunications (Interception and Access) Act 1979 ), solely for the purpose of complying with Part 5-1A of that Act; and

                     (b)  is not used or disclosed by the service provider for any purpose other than one or more of the following purposes:

                              (i)  complying with Part 5-1A of that Act;

                             (ii)  complying with the requirements of warrants under Chapters 2 and 3 of that Act or authorisations under Chapter 4 of that Act;

                            (iii)  complying with requests or requirements to make disclosures provided for by sections 284 to 288 of this Act;

                            (iv)  providing persons with access to their personal information in accordance with the Privacy Act 1988 ;

                             (v)  a purpose prescribed by the regulations;

                            (vi)  a purpose incidental to any of the purposes referred to in subparagraphs (i) to (v).

             (3)  Subsection (2) does not apply:

                     (a)  in circumstances of a kind prescribed by the regulations; or

                     (b)  to a disclosure to an enforcement agency (within the meaning of the Telecommunications (Interception and Access) Act 1979 ); or

                     (c)  to a disclosure that occurs during the implementation phase (within the meaning of that Act).

4  Subsection 314(8)

Omit "Part 5-3 or 5-5 of the Telecommunications (Interception and Access) Act 1979 (about", substitute "Part 5-1A, 5-3 or 5-5 of the Telecommunications (Interception and Access) Act 1979 (about data retention,".

Telecommunications (Interception and Access) Act 1979

5  Subsection 5(1)

Insert:

"Defence Minister " has the same meaning as in the Intelligence Services Act 2001 .

"Foreign Affairs Minister " has the same meaning as in the Intelligence Services Act 2001 .

"IGIS official " has the same meaning as in the Australian Security Intelligence Organisation Act 1979 .

"implementation phase " has the meaning given by subsection 187H(2).

"infrastructure " means any line or equipment used to facilitate communications across a telecommunications network.

"journalist information warrant " means a warrant issued under Division 4C of Part 4-1.

Part 4-1 issuing authority means a person in respect of whom an appointment is in force under section 6DC.

"Public Interest Advocate " means a person declared under section 180X to be a Public Interest Advocate.

"related account, service or device " , in relation to a service to which Part 5-1A applies, means:

                     (a)  an account; or

                     (b)  a telecommunications device; or

                     (c)  another service of a kind referred to in paragraph 187A(3)(a);

that is related to the service.

"retained data " means information, or documents, that a service provider is or has been required to keep under Part 5-1A.

"service provider " has the meaning given by subsection 187A(1).

"source " (except in item 2 of the table in subsection 187AA(1)) means a person who provides information:

                     (a)  to another person who is working in a professional capacity as a journalist; and

                     (b)  in the normal course of the other person's work in such a capacity; and

                     (c)  in the expectation that the information may be disseminated in the form of:

                              (i)  news, current affairs or a documentary; or

                             (ii)  commentary or opinion on, or analysis of, news, current affairs or a documentary.

6  At the end of subsection 6R(3)

Add "and all the enforcement agencies".

6A  After section 6DB

Insert:

6DC   Part 4-1 issuing authorities

             (1)  The Minister may, by writing, appoint as a Part 4-1 issuing authority:

                     (a)  a person who is:

                              (i)  a judge of a court created by the Parliament; or

                            (iii)  a magistrate;

                            and in relation to whom a consent under subsection (2) is in force; or

                     (b)  a person who:

                              (i)  holds an appointment to the Administrative Appeals Tribunal as Deputy President, full-time senior member, part-time senior member or member; and

                             (ii)  is enrolled as a legal practitioner of a federal court or of the Supreme Court of a State or a Territory; and

                            (iii)  has been enrolled for at least 5 years.

             (2)  A person who is:

                     (a)  a judge of a court created by the Parliament; or

                     (b)  a magistrate;

may, by writing, consent to be appointed by the Minister under subsection (1).

             (3)  A person's appointment ceases to have effect if:

                     (a)  the person ceases to be a person whom the Minister could appoint under this section; or

                     (b)  the Minister, by writing, revokes the appointment.

             (4)  A Part 4-1 issuing authority has, in relation to the performance or exercise of a function or power conferred on a Part 4-1 issuing authority by this Act, the same protection and immunity as a Justice of the High Court has in relation to proceedings in the High Court.

6B  Section 64 (heading)

Repeal the heading, substitute:

64   Dealing in connection with Organisation's or Inspector-General's functions

6C  Subsection 64(1)

After "its functions", insert "or the performance by the Inspector-General of Intelligence and Security of his or her functions".

6D  Subsection 64(2)

Repeal the subsection, substitute:

             (2)  A person, being the Director-General of Security or an ASIO employee, ASIO affiliate or IGIS official, may:

                     (a)  in connection with the performance by the Organisation of its functions; or

                     (b)  in connection with the performance by the Inspector-General of Intelligence and Security of his or her functions;

communicate to another such person, make use of, or make a record of, foreign intelligence information.

6E  Paragraph 176(5)(b)

Repeal the paragraph, substitute:

                     (b)  unless it is revoked earlier, ends at the time specified in the authorisation, which must be a time that:

                              (i)  is no later than the end of the period of 90 days beginning on the day the authorisation is made; and

                             (ii)  if the authorisation is made under a journalist information warrant--is no later than the end of the period specified under section 180N as the period for which the warrant is to remain in force.

6F  Subsection 176(6)

Repeal the subsection, substitute:

Revoking the authorisation

             (6)  An eligible person must revoke the authorisation if:

                     (a)  he or she is satisfied that the disclosure is no longer required; or

                     (b)  in a case where the authorisation is made under a journalist information warrant:

                              (i)  the warrant is revoked under subsection 180N(1); or

                             (ii)  the Director-General of Security has informed the Minister under section 180P that the Director-General is satisfied that the grounds on which the warrant was issued have ceased to exist.

Note:          Section 184 deals with notification of authorisations.

6G  Paragraph 180(6)(b)

Repeal the paragraph, substitute:

                     (b)  unless it is revoked earlier, ends at the time specified in the authorisation, which must be a time that:

                              (i)  is no later than the end of the period of 45 days beginning on the day the authorisation is made; and

                             (ii)  if the authorisation is made under a journalist information warrant--is no later than the end of the period specified under subsection 180U(3) as the period for which the warrant is to remain in force.

6H  Subsection 180(7)

Repeal the subsection, substitute:

Revoking the authorisation

             (7)  An authorised officer of the criminal law-enforcement agency must revoke the authorisation if:

                     (a)  he or she is satisfied that the disclosure is no longer required; or

                     (b)  in a case where the authorisation is made under a journalist information warrant--the warrant is revoked under subsection 180W(1).

Note:          Section 184 deals with notification of authorisations.

6J  Section 180F

Omit "have regard to whether any interference with the privacy of any person or persons that may result from the disclosure or use is justifiable", substitute "be satisfied on reasonable grounds that any interference with the privacy of any person or persons that may result from the disclosure or use is justifiable and proportionate".

6K  Before paragraph 180F(a)

Insert:

                    (aa)  the gravity of any conduct in relation to which the authorisation is sought, including:

                              (i)  the seriousness of any offence in relation to which the authorisation is sought; and

                             (ii)  the seriousness of any pecuniary penalty in relation to which the authorisation is sought; and

                            (iii)  the seriousness of any protection of the public revenue in relation to which the authorisation is sought; and

                            (iv)  whether the authorisation is sought for the purposes of finding a missing person;

6L  After Division 4B of Part 4-1

Insert:

Division 4C -- Journalist information warrants

Subdivision A -- The requirement for journalist information warrants

180G   The Organisation

             (1)  An eligible person (within the meaning of subsection 175(2) or 176(2), as the case requires) must not make an authorisation under Division 3 that would authorise the disclosure of information or documents relating to a particular person if:

                     (a)  the eligible person knows or reasonably believes that particular person to be:

                              (i)  a person who is working in a professional capacity as a journalist; or

                             (ii)  an employer of such a person; and

                     (b)  a purpose of making the authorisation would be to identify another person whom the eligible person knows or reasonably believes to be a source;

unless a journalist information warrant is in force in relation to that particular person.

             (2)  Nothing in this section affects by implication the kind of person in relation to whom a warrant (other than a journalist information warrant) may be issued under this Act.

180H   Enforcement agencies

             (1)  An authorised officer of an enforcement agency must not make an authorisation under section 178, 178A, 179 or 180 that would authorise the disclosure of information or documents relating to a particular person if:

                     (a)  the authorised officer knows or reasonably believes that particular person to be:

                              (i)  a person who is working in a professional capacity as a journalist; or

                             (ii)  an employer of such a person; and

                     (b)  a purpose of making the authorisation would be to identify another person whom the authorised officer knows or reasonably believes to be a source;

unless a journalist information warrant is in force, in relation to that particular person, under which authorised officers of the agency may make authorisations under that section.

             (2)  An authorised officer of the Australian Federal Police must not make an authorisation under Division 4A that would authorise the disclosure of information or documents relating to a particular person if:

                     (a)  the authorised officer knows or reasonably believes that particular person to be:

                              (i)  a person who is working in a professional capacity as a journalist; or

                             (ii)  an employer of such a person; and

                     (b)  a purpose of making the authorisation would be to identify another person whom the authorised officer knows or reasonably believes to be a source.

             (3)  Nothing in this section affects by implication the kind of person in relation to whom a warrant (other than a journalist information warrant) may be issued under this Act.

Subdivision B -- Issuing journalist information warrants to the Organisation

180J   Requesting a journalist information warrant

             (1)  The Director-General of Security may request the Minister to issue a journalist information warrant in relation to a particular person.

             (2)  The request must specify the facts and other grounds on which the Director-General considers it necessary that the warrant be issued.

180K   Further information

             (1)  The Minister may require the Director-General of Security to give to the Minister, within the period specified in the requirement, further information in connection with a request under this Subdivision.

             (2)  If the Director-General breaches the requirement, the Minister may:

                     (a)  refuse to consider the request; or

                     (b)  refuse to take any action, or any further action, in relation to the request.

180L   Issuing a journalist information warrant

             (1)  After considering a request under section 180J, the Minister must:

                     (a)  issue a journalist information warrant that authorises the making of authorisations under Division 3 in relation to the particular person to which the request relates; or

                     (b)  refuse to issue a journalist information warrant.

             (2)  The Minister must not issue a journalist information warrant unless the Minister is satisfied that:

                     (a)  the Organisation's functions would extend to the making of authorisations under Division 3 in relation to the particular person; and

                     (b)  the public interest in issuing the warrant outweighs the public interest in protecting the confidentiality of the identity of the source in connection with whom authorisations would be made under the authority of the warrant, having regard to:

                              (i)  the extent to which the privacy of any person or persons would be likely to be interfered with by the disclosure of information or documents under authorisations that are likely to be made under the authority of the warrant; and

                             (ii)  the gravity of the matter in relation to which the warrant is sought; and

                            (iii)  the extent to which that information or those documents would be likely to assist in the performance of the Organisation's functions; and

                            (iv)  whether reasonable attempts have been made to obtain the information or documents by other means; and

                             (v)  any submissions made by a Public Interest Advocate under section 180X; and

                            (vi)  any other matters the Minister considers relevant.

             (3)  A journalist information warrant issued under this section may specify conditions or restrictions relating to making authorisations under the authority of the warrant.

180M   Issuing a journalist information warrant in an emergency

             (1)  The Director-General of Security may issue a journalist information warrant in relation to a particular person if:

                     (a)  a request under section 180J has been made for the issue of a journalist information warrant in relation to the particular person; and

                     (b)  the Minister has not, to the knowledge of the Director-General, made a decision under section 180L in relation to the request; and

                     (c)  within the preceding period of 3 months:

                              (i)  the Minister has not refused to issue a journalist information warrant in relation to the particular person; and

                             (ii)  the Director-General has not issued such a journalist information warrant; and

                     (d)  the Director-General is satisfied that, security will be, or is likely to be, seriously prejudiced if the access to which the request relates does not begin before a journalist information warrant can be issued and made available by the Minister; and

                     (e)  either:

                              (i)  the issuing of the warrant is authorised under subsection (3); or

                             (ii)  the Director-General is satisfied that none of the Ministers specified in subsection (4) is readily available or contactable.

             (2)  The Director-General must not issue a journalist information warrant unless the Director-General is satisfied as to the matters set out in paragraphs 180L(2)(a) and (b).

Authorisation to issue a warrant under this section

             (3)  A Minister specified in subsection (4) may, if he or she is satisfied as to the matters set out in paragraphs 180L(2)(a) and (b), orally give an authorisation under this subsection for the Director-General to issue the warrant under this section.

             (4)  The Ministers who may orally give an authorisation are:

                     (a)  the Minister; or

                     (b)  if the Director-General is satisfied that the Minister is not readily available or contactable--any of the following Ministers:

                              (i)  the Prime Minister;

                             (ii)  the Defence Minister;

                            (iii)  the Foreign Affairs Minister.

             (5)  The authorisation may specify conditions or restrictions relating to issuing the warrant.

             (6)  The Director-General must ensure that a written record of an authorisation given under subsection (3) is made as soon as practicable (but no later than 48 hours) after the authorisation is given.

Duration of a warrant under this section

             (7)  A journalist information warrant under this section must specify the period (not exceeding 48 hours) for which it is to remain in force. The Minister may revoke the warrant at any time before the end of the specified period.

Copies of warrant and other documents

             (8)  Immediately after issuing a journalist information warrant under this section, the Director-General must give the Minister:

                     (a)  a copy of the warrant; and

                     (b)  a statement of the grounds on which the warrant was issued; and

                     (c)  either:

                              (i)  a copy of the record made under subsection (6); or

                             (ii)  if the Director-General was satisfied as mentioned in subparagraph (1)(e)(ii)--a summary of the facts of the case justifying issuing the warrant.

             (9)  Within 3 business days after issuing a journalist information warrant under this section, the Director-General must give the Inspector-General of Intelligence and Security:

                     (a)  a copy of the warrant; and

                     (b)  either:

                              (i)  a copy of the record made under subsection (6); or

                             (ii)  if the Director-General was satisfied as mentioned in subparagraph (1)(e)(ii)--a summary of the facts of the case justifying issuing the warrant.

           (10)  Subsection (9) has effect despite subsection 185D(1).

180N   Duration of a journalist information warrant

                   A journalist information warrant issued under section 180L must specify the period (not exceeding 6 months) for which it is to remain in force. The Minister may revoke the warrant at any time before the end of the specified period.

180P   Discontinuance of authorisations before expiry of a journalist information warrant

                   If, before a journalist information warrant issued under this Subdivision ceases to be in force, the Director-General of Security is satisfied that the grounds on which the warrant was issued have ceased to exist, he or she must:

                     (a)  forthwith inform the Minister accordingly; and

                     (b)  takes such steps as are necessary to ensure that the making of authorisations under the authority of the warrant is discontinued.

Subdivision C -- Issuing journalist information warrants to enforcement agencies

180Q   Enforcement agency may apply for a journalist information warrant

             (1)  An enforcement agency may apply to a Part 4-1 issuing authority for a journalist information warrant in relation to a particular person.

             (2)  The application must be made on the agency's behalf by:

                     (a)  if the agency is referred to in subsection 39(2)--a person referred to in that subsection in relation to that agency; or

                     (b)  otherwise:

                              (i)  the chief officer of the agency; or

                             (ii)  an officer of the agency (by whatever name called) who holds, or is acting in, an office or position in the agency nominated under subsection (3).

             (3)  The chief officer of the agency may, in writing, nominate for the purposes of subparagraph (2)(b)(ii) an office or position in the agency that is involved in the management of the agency.

             (4)  A nomination under subsection (3) is not a legislative instrument.

             (5)  The application may be made in writing or in any other form.

Note:          The Electronic Transactions Act 1999 deals with giving information in writing by means of an electronic communication.

180R   Further information

             (1)  The Part 4-1 issuing authority may require:

                     (a)  in any case--the chief officer of the agency; or

                     (b)  if the application is made, on the agency's behalf, by a person other than the chief officer--that other person;

to give to the Part 4-1 issuing authority, within the period and in the form specified in the requirement, further information in connection with the application.

             (2)  If the chief officer or other person breaches the requirement, the Part 4-1 issuing authority may:

                     (a)  refuse to consider the application; or

                     (b)  refuse to take any action, or any further action, in relation to the application.

180S   Oaths and affirmations

             (1)  Information given to the Part 4-1 issuing authority in connection with the application must be verified on oath or affirmation.

             (2)  For the purposes of this section, the Part 4-1 issuing authority may:

                     (a)  administer an oath or affirmation; or

                     (b)  authorise another person to administer an oath or affirmation.

The oath or affirmation may be administered in person, or by telephone, video call, video link or audio link.

180T   Issuing a journalist information warrant

             (1)  After considering an application under section 180Q, the Part 4-1 issuing authority must:

                     (a)  issue a journalist information warrant that authorises the making of authorisations under one or more of sections 178, 178A, 179 and 180 in relation to the particular person to which the application relates; or

                     (b)  refuse to issue a journalist information warrant.

             (2)  The Part 4-1 issuing authority must not issue a journalist information warrant unless the Part 4-1 issuing authority is satisfied that:

                     (a)  the warrant is reasonably necessary for whichever of the following purposes are applicable:

                              (i)  if the warrant would authorise the making of authorisations under section 178--for the enforcement of the criminal law;

                             (ii)  if the warrant would authorise the making of authorisations under section 178A--finding a person who the Australian Federal Police, or a Police Force of a State, has been notified is missing;

                            (iii)  if the warrant would authorise the making of authorisations under section 179--the enforcement of a law imposing a pecuniary penalty or for the protection of the public revenue;

                            (iv)  if the warrant would authorise the making of authorisations under section 180--the investigation of an offence of a kind referred to in subsection 180(4); and

                     (b)  the public interest in issuing the warrant outweighs the public interest in protecting the confidentiality of the identity of the source in connection with whom authorisations would be made under the authority of the warrant, having regard to:

                              (i)  the extent to which the privacy of any person or persons would be likely to be interfered with by the disclosure of information or documents under authorisations that are likely to be made under the authority of the warrant; and

                             (ii)  the gravity of the matter in relation to which the warrant is sought; and

                            (iii)  the extent to which that information or those documents would be likely to assist in relation to that matter; and

                            (iv)  whether reasonable attempts have been made to obtain the information or documents by other means; and

                             (v)  any submissions made by a Public Interest Advocate under section 180X; and

                            (vi)  any other matters the Part 4-1 issuing authority considers relevant.

180U   Form and content of a journalist information warrant

             (1)  A journalist information warrant issued under this Subdivision must be in accordance with the prescribed form and must be signed by the Part 4-1 issuing authority who issues it.

             (2)  A journalist information warrant issued under this Subdivision may specify conditions or restrictions relating to making authorisations under the authority of the warrant.

             (3)  A journalist information warrant issued under this Subdivision must specify, as the period for which it is to be in force, a period of up to 90 days.

             (4)  A Part 4-1 issuing authority must not vary a journalist information warrant issued under this Subdivision by extending the period for which it is to be in force.

             (5)  Neither of subsections (3) and (4) prevents the issue of a further warrant under this Act in relation to a person, in relation to which a warrant under this Act has, or warrants under this Act have, previously been issued.

180V   Entry into force of a journalist information warrant

                   A journalist information warrant issued under this Subdivision comes into force when it is issued.

180W   Revocation of a journalist information warrant by chief officer

             (1)  The chief officer of an enforcement agency:

                     (a)  may, at any time, by signed writing, revoke a journalist information warrant issued under this Subdivision to the agency; and

                     (b)  must do so, if he or she is satisfied that the grounds on which the warrant was issued to the agency have ceased to exist.

             (2)  The chief officer of an enforcement agency may delegate his or her power under paragraph (1)(a) to a certifying officer of the agency.

Subdivision D -- Miscellaneous

180X   Public Interest Advocates

             (1)  The Prime Minister shall declare, in writing, one or more persons to be Public Interest Advocates.

             (2)  A Public Interest Advocate may make submissions:

                     (a)  to the Minister about matters relevant to:

                              (i)  a decision to issue, or refuse to issue, a journalist information warrant under section 180L; or

                             (ii)  a decision about the conditions or restrictions (if any) that are to be specified in such a warrant; or

                     (b)  to a Part 4-1 issuing authority about matters relevant to:

                              (i)  a decision to issue, or refuse to issue, the warrant under section 180T; or

                             (ii)  a decision about the conditions or restrictions (if any) that are to be specified in such a warrant.

             (3)  The regulations may prescribe matters relating to the performance of the role of a Public Interest Advocate.

             (4)  A declaration under subsection (1) is not a legislative instrument.

6M  After subparagraph 181A(3)(b)(i)

Insert:

                            (ia)  to enable a person to comply with his or her obligations under section 185D or 185E; or

6N  After paragraph 181A(3)(b)

Insert:

               ; or (c)  the disclosure is:

                              (i)  to an IGIS official for the purpose of the Inspector-General of Intelligence and Security exercising powers, or performing functions or duties, under the Inspector-General of Intelligence and Security Act 1986 ; or

                             (ii)  by an IGIS official in connection with the IGIS official exercising powers, or performing functions or duties, under that Act.

6P  After subparagraph 181A(6)(b)(i)

Insert:

                            (ia)  to enable a person to comply with his or her obligations under section 185D or 185E; or

6Q  After paragraph 181A(6)(b)

Insert:

               ; or (c)  the use is by an IGIS official in connection with the IGIS official exercising powers, or performing functions or duties, under the Inspector-General of Intelligence and Security Act 1986 .

6R  After subparagraph 181B(3)(b)(i)

Insert:

                            (ia)  to enable a person to comply with his or her obligations under section 185D or 185E; or

6S  Before subparagraph 181B(6)(b)(i)

Insert:

                            (ia)  to enable a person to comply with his or her obligations under section 185D or 185E; or

6T  Subsection 182(2)

Repeal the subsection, substitute:

Exempt disclosures

             (2)  Paragraph (1)(b) does not apply to a disclosure of non-missing person information if:

                     (a)  the disclosure is reasonably necessary:

                              (i)  for a person to comply with his or her obligations under section 185D or 185E; or

                             (ii)  for the performance by the Organisation of its functions; or

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

                            (iv)  for the enforcement of a law imposing a pecuniary penalty; or

                             (v)  for the protection of the public revenue; or

                     (b)  the disclosure is:

                              (i)  to an IGIS official for the purpose of the Inspector-General of Intelligence and Security exercising powers, or performing functions or duties, under the Inspector-General of Intelligence and Security Act 1986 ; or

                             (ii)  by an IGIS official in connection with the IGIS official exercising powers, or performing functions or duties, under that Act.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code ).

6U  Subsection 182(3)

Repeal the subsection, substitute:

Exempt uses

             (3)  Paragraph (1)(b) does not apply to a use of non-missing person information if:

                     (a)  the use is reasonably necessary:

                              (i)  for a person to comply with his or her obligations under section 185D or 185E; or

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

                            (iii)  for the enforcement of a law imposing a pecuniary penalty; or

                            (iv)  for the protection of the public revenue; or

                     (b)  the use is by an IGIS official in connection with the IGIS official exercising powers, or performing functions or duties, under the Inspector-General of Intelligence and Security Act 1986 .

Note:          A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code ).

6V  At the end of Division 6 of Part 4-1

Add:

182A   Disclosure/use offences: journalist information warrants

             (1)  A person commits an offence if:

                     (a)  the person discloses or uses information; and

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

                              (i)  whether a journalist information warrant (other than such a warrant that relates only to section 178A) has been, or is being, requested or applied for;

                             (ii)  the making of such a warrant;

                            (iii)  the existence or non-existence of such a warrant;

                            (iv)  the revocation of such a warrant.

Penalty:  Imprisonment for 2 years.

             (2)  A person commits an offence if:

                     (a)  the person discloses or uses a document; and

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

                              (i)  a journalist information warrant (other than such a warrant that relates only to section 178A);

                             (ii)  the revocation of such a warrant.

Penalty:  Imprisonment for 2 years.

182B   Permitted disclosure or use: journalist information warrants

                   Paragraphs 182A(1)(a) and (2)(a) do not apply to a disclosure or use of information or a document if:

                     (a)  the disclosure or use is for the purposes of the warrant, revocation or notification concerned; or

                     (b)  the disclosure or use is reasonably necessary:

                              (i)  to enable the making of submissions under section 180X; or

                             (ii)  to enable a person to comply with his or her obligations under section 185D or 185E; or

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

                            (iv)  to enforce the criminal law; or

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

                            (vi)  to protect the public revenue; or

                     (c)  in the case of a disclosure--the disclosure is:

                              (i)  to an IGIS official for the purpose of the Inspector-General of Intelligence and Security exercising powers, or performing functions or duties, under the Inspector-General of Intelligence and Security Act 1986 ; or

                             (ii)  by an IGIS official in connection with the IGIS official exercising powers, or performing functions or duties, under that Act; or

                     (d)  in the case of a use--the use is by an IGIS official in connection with the IGIS official exercising powers, or performing functions or duties, under the Inspector-General of Intelligence and Security Act 1986 .

Note:          A defendant bears an evidential burden in relation to the matter in this section (see subsection 13.3(3) of the Criminal Code ).

6W  At the end of section 185

Add:

             (3)  This section does not limit subsection 187N(3).

6X  After section 185C

Insert:

185D   Notification etc. of authorisations intended to identify media sources

The Organisation

             (1)  If a journalist information warrant is issued under Subdivision B of Division 4C of Part 4-1:

                     (a)  the Director-General of Security must, as soon as practicable, give a copy of the warrant to the Inspector-General of Intelligence and Security; and

                     (b)  the Minister must, as soon as practicable, cause the Parliamentary Joint Committee on Intelligence and Security to be notified of the issuing of the warrant.

             (2)  If an authorisation under Division 3 of Part 4-1 is made under the authority of the warrant, the Director-General of Security must, as soon as practicable after the expiry of the warrant, give a copy of the authorisation to the Inspector-General of Intelligence and Security.

             (3)  If:

                     (a)  the Inspector-General gives to the Minister a report under section 22 or 25A of the Inspector-General of Intelligence and Security Act 1986 ; and

                     (b)  the report relates (wholly or partly) to one or both of the following:

                              (i)  a journalist information warrant issued to the Organisation;

                             (ii)  one or more authorisations referred to in subsection (2) of this section;

the Minister must, as soon as practicable, cause a copy of the report to be given to the Parliamentary Joint Committee on Intelligence and Security.

             (4)  The Parliamentary Joint Committee on Intelligence and Security may request a briefing from the Inspector-General on :

                     (a)  a journalist information warrant; or

                     (b)  an authorisation or authorisations;

to which a report referred to in paragraph (3)(b) of this section relates.

Enforcement agencies

             (5)  If a journalist information warrant is issued to an enforcement agency:

                     (a)  if the agency was the Australian Federal Police:

                              (i)  the Commissioner of Police must, as soon as practicable, give copies of the warrant to the Minister and the Ombudsman; and

                             (ii)  the Minister must, as soon as practicable after receiving a copy, cause the Parliamentary Joint Committee on Intelligence and Security to be notified of the issuing of the warrant; and

                     (b)  otherwise--the chief officer of the agency must, as soon as practicable, give a copy of the warrant to the Ombudsman.

             (6)  If an authorisation under Division 4 of Part 4-1 is made under the authority of the warrant, the chief officer of the agency must, as soon as practicable after the expiry of the warrant, give a copy of the authorisation to the Ombudsman.

             (7)  If:

                     (a)  the Ombudsman gives to the Minister a report under section 186J of this Act; and

                     (b)  the report relates (wholly or partly) to one or both of the following:

                              (i)  a journalist information warrant issued to the Australian Federal Police;

                             (ii)  one or more authorisations, referred to in subsection (6) of this section, that were made by one or more authorised officers of the Australian Federal Police;

the Minister must, as soon as practicable, cause a copy of the report to be given to the Parliamentary Joint Committee on Intelligence and Security.

             (8)  The Parliamentary Joint Committee on Intelligence and Security may request a briefing from the Ombudsman on:

                     (a)  a journalist information warrant; or

                     (b)  an authorisation or authorisations;

to which a report referred to in paragraph (7)(b) of this section relates.

185E   Reports on access to retained data

The Organisation

             (1)  If:

                     (a)  the Inspector-General of Intelligence and Security gives to the Minister a report under section 22 or 25A of the Inspector-General of Intelligence and Security Act 1986 ; and

                     (b)  the report relates (wholly or partly) to the purpose or manner of access to retained data by means of one or more authorisations under Division 3 of Part 4-1 of this Act;

the Minister must, as soon as practicable, cause a copy of the report to be given to the Parliamentary Joint Committee on Intelligence and Security.

             (2)  The Parliamentary Joint Committee on Intelligence and Security may request a briefing from the Inspector-General on the authorisation or authorisations.

Australian Federal Police

             (3)  If:

                     (a)  the Ombudsman gives to the Minister a report under section 186J of this Act; and

                     (b)  the report relates (wholly or partly) to the purpose or manner of access to retained data by means of one or more authorisations under Division 4 or 4A of Part 4-1 of this Act; and

                     (c)  the authorisation or authorisations were made by one or more authorised officers of the Australian Federal Police;

the Minister must, as soon as practicable, cause a copy of the report to be given to the Parliamentary Joint Committee on Intelligence and Security.

             (4)  The Parliamentary Joint Committee on Intelligence and Security may request a briefing from the Ombudsman on the authorisation or authorisations.

6Y  At the end of subsection 186(1)

Add:

             ; and (e)  the offences and other matters for which authorised officers of the agency made authorisations under sections 178, 178A, 179 and 180 during that year; and

                      (f)  the lengths of time for which the information or documents that were covered by those authorisations had been held when the authorisations were made; and

                     (g)  the number of occasions during that year on which authorised officers of the agency made authorisations relating to retained data that included information of a kind referred to in item 1 of the table in subsection 187AA(1); and

                     (h)  the number of occasions during that year on which authorised officers of the agency made authorisations relating to retained data that included information of a kind referred to in item 2, 3, 4, 5 or 6 of the table in subsection 187AA(1); and

                      (i)  the number of authorisations, referred to in paragraph (e) of this subsection, that were made under journalist information warrants issued to the agency under Subdivision C of Division 4C of Part 4-1; and

                      (j)  the number of journalist information warrants issued to the agency under that Subdivision during the period; and

                     (k)  information of a kind declared under subsection (1E) of this section.

6Z  After subsection 186(1)

Insert:

          (1A)  The report under subsection (1) is to set out the offences and other matters referred to in paragraph (1)(e) by means of the categories declared under subsection (1B).

          (1B)  The Minister may, by legislative instrument, declare categories of offences and other matters into which the offences and other matters are to be divided for the purposes of paragraph (1)(e).

          (1C)  The report under subsection (1) is to set out the matters referred to in paragraph (1)(f) by specifying:

                     (a)  in relation to each of 8 successive periods of 3 months, the number of the authorisations made for information or documents held for lengths of time included in that period; and

                     (b)  the number of the authorisations made for information or documents held for lengths of time exceeding 24 months.

          (1D)  For the purposes of paragraph (1)(f), disregard any authorisations under subsection 180(2), except to the extent that they include authorisations under subsection 180(3).

          (1E)  The Minister may, by legislative instrument, declare kinds of information that are to be set out in the report under subsection (1).

Part 3 -- Application provisions

7  Existing information and documents

(1)       The amendments made by this Schedule apply in relation to information or a document:

                     (a)  that is of a kind referred to in paragraph 187A(1)(a) or (b) of the Telecommunications (Interception and Access) Act 1979 as amended by this Act; and

                     (b)  that a service provider was keeping, or causing to be kept, immediately before the commencement of this item; and

                     (c)  in relation to which a period specified in section 187C of that Act as so amended had not expired before that commencement.

(2)       However, this item does not require a service provider to create, or to have created, any information or document that was not created by the operation, before that commencement, of a service to which Part 5-1A of that Act as so amended applies.

8  Reducing the period for keeping information or documents

(1)       A service provider must not, before the commencement Part 5-1A of the Telecommunications (Interception and Access) Act 1979 as amended by this Act, reduce the period for which it keeps or causes to be kept any information or document that the service provider will, after that commencement, be required by that Part to keep or cause to be kept.

(2)       This item is taken to be a civil penalty provision for the purposes of the Telecommunications Act 1997 , as if it had been so declared by a provision of that Act.

9  Applications made before commencement of Part 5-1A

(1)       At any time after this Act receives the Royal Assent, a service provider may apply for either or both of the following:

                     (a)  approval of:

                              (i)  a data retention implementation plan; or

                             (ii)  an amendment of a data retention implementation plan;

                            under Division 2 of Part 5-1A of the Telecommunications (Interception and Access) Act 1979 as amended by this Act;

                     (b)  a decision under subsection 187K(1) or 187KA(2) of that Act as so amended.

(2)       Paragraph (1)(a) of this item does not apply to an application for approval of a data retention implementation plan unless the application would, if made after the commencement of Part 5-1A of that Act as so amended, have complied with section 187E of that Act as so amended.

10  Decisions made before commencement of Part 5-1A

(1)       To avoid doubt, the power to make a decision under section 187F, 187G, 187J , 187K or 187KA of the Telecommunications (Interception and Access) Act 1979 as amended by this Act is taken, for the purposes of section 4 of the Acts Interpretation Act 1901 , to be a power to make an instrument of an administrative character.

(2)       Subsection 187F(3) of the Telecommunications (Interception and Access) Act 1979 as amended by this Act applies, in relation to an application made before the commencement of Part 5-1A of that Act as so amended for approval of a data retention implementation plan, as if references in that subsection to 60 days were references to the number of days provided for in subitem (4) of this item.

(3)       Paragraph 187K(5)(b) of the Telecommunications (Interception and Access) Act 1979 as amended by this Act applies, in relation to an application made before the commencement of Part 5-1A of that Act as so amended for a decision under subsection 187K(1) of that Act as so amended, as if references in that paragraph to 60 days were references to the number of days provided for in subitem (4) of this item.

(4)       For the purposes of subitem (2) or (3), the number of days is:

                     (a)  the number of days in the period between:

                              (i)  the day the application referred to in that subitem was made; and

                             (ii)  the day immediately before the commencement of Part 5-1A of the Telecommunications (Interception and Access) Act 1979 as amended by this Act; or

                     (b)  60 days;

whichever is the greater.

11  Keeping information or documents before commencement of Part 5-1A

A service provider may, before the commencement of this item, keep or cause to be kept any information or document that, after that commencement, Part 5-1A of the Telecommunications (Interception and Access) Act 1979 as amended by this Act will require the service provider to keep or cause to be kept.

12  First reporting period after commencement of Part 5-1A

(1)       The annual report referred to in subsection 94(1) of the Australian Security Intelligence Organisation Act 1979 for the period during which Part 5-1A commenced is to include a statement of the matters referred to in paragraphs 94(2A)(c) to (j) of that Act as amended by this Act only to the extent that the matters relate to the part of that period occurring after Part 5-1A commenced.

(2)       A report under section 186 of the Telecommunications (Interception and Access) Act 1979 as amended by this Act for the period during which Part 5-1A commenced is to include a statement of the matters referred to in paragraphs 186(1)(e) to (k) of that Act as so amended only to the extent that the matters relate to the part of that period occurring after Part 5-1A commenced.

(3)       In this item:

Part 5-1A means Part 5-1A of the Telecommunications (Interception and Access) Act 1979 as amended by this Act.