Telecommunications (Interception and Access) (Communications Access Co-ordinator) Instrument 2022 (No 2)-New matters [2022] AUSStaCSDLM 112 (23 November 2022)

• Chapter 1
• New and ongoing matters
• New matters
• Telecommunications (Interception and Access) (Communications Access Co-ordinator) Instrument 2022 (No. 2)
• Overview
• Scrutiny concerns
• Ongoing matters

Chapter 1
New and ongoing matters

1.1 This Chapter details the committee's significant new and ongoing scrutiny concerns in legislative instruments relating to the committee's technical legislative scrutiny principles in Senate standing order 23(3).

New matters

1.2 The committee has identified significant technical scrutiny concerns in relation to the instruments listed below.

Telecommunications (Interception and Access) (Communications Access Co-ordinator) Instrument 2022 (No. 2)

FRL No.	F2022L01321[1]
Purpose	Specifies certain positions in the Department of Home Affairs and the Attorney-General's Department as 'Communications Access Co-ordinators' under subsection 6R(2) of the Telecommunications (Interception and Access) Act 1979.
Authorising legislation	Telecommunications (Interception and Access) Act 1979
Portfolio	Attorney-General's
Disallowance	15 sitting days after tabling (tabled in the Senate on 25 October 2022)

Overview

1.3 The Telecommunications (Interception and Access) Act 1979 (the Act) establishes the position of 'Communications Access Co-ordinator' as the primary point of liaison for interception agencies and telecommunications and carriage service providers in relation to telecommunications interception and data retention issues. The Act also empowers the Attorney-General to specify, by legislative instrument, a person or body as a Communications Access Co-ordinator.^[2]

1.4 The Telecommunications (Interception and Access) (Communications Access Co-ordinator) Instrument 2022 (No.2) (the instrument) specifies certain positions in the Department of Home Affairs and the Attorney-General's Department as Communications Access Co-ordinators under the Act. It also repeals and remakes the Telecommunications (Interception and Access) (Communications Access Co-ordinator) Instrument 2022 (the original 2022 instrument) to take into account a restructure of the Attorney-General's Department.^[3]

1.5 The committee's secretariat, on behalf of the committee, engaged with the Attorney-General's Department in relation to the original 2022 instrument in October and November 2022. As the committee has identified similar scrutiny concerns with the current instrument, it has now resolved to raise those scrutiny concerns with the Attorney-General.

Scrutiny concerns

Delegation of administrative powers and functions;^[4] adequacy of explanatory materials^[5]

1.6 Under the Act, the Communications Access Co-ordinator is defined as the Secretary of the Department or a person or body that the Attorney-General specifies in a legislative instrument.^[6] Section 5 of the instrument specifies certain persons as Communications Access Co-ordinators for this purpose. These are persons classified at Executive Level 1, Executive Level 2 or Senior Executive Service (SES) Band 1,^[7] in certain work areas of the Attorney-General's Department and the Department of Home Affairs, as well as SES Band 2 or Group Manager in a specified work area of the Department of Home Affairs. Communications Access Co-ordinators are empowered to perform certain functions under the Act.

1.7 Senate standing order 23(3)(c) requires the committee to scrutinise each instrument as to whether it makes rights, liberties, obligations or interests unduly dependent on insufficiently defined administrative powers. This includes where administrative powers and functions are delegated under the instrument. In addition, Senate standing order 23(3)(g) requires the committee to scrutinise each instrument as to whether the accompanying explanatory statement provides sufficient information to gain a clear understanding of the instrument.

1.8 The committee notes that the explanatory statement indicates that, in assigning Communications Access Co-ordinator functions to particular classification levels, the departments have had regard to the Australian Public Service Commission's APS Work Level standards and Integrated Leadership System.

1.9 However, the committee is concerned that neither the instrument nor its explanatory statement indicates which delegates will exercise the different powers specified in section 5. In addition, while the explanatory statement does explain who will exercise certain powers under the Act, it remains unclear to the committee which delegates will exercise the remaining powers.

1.10 The committee is particularly concerned about the delegation of the following powers under the Act, given their significance:

• Section 187B(2), which enables Communications Access Co-ordinators to declare that data retention obligations provided for in section 187A(1) apply to a service provider,^[8] where they otherwise would not apply on the basis that the relevant service is only provided to a person's immediate circle,^[9] or in the same area;^[10]

• Section 187K, which enables Communications Access Co-ordinators to exempt or vary obligations imposed on service providers to retain data under Part 5‑1A of the Act;

• Section 192 which enables Communications Access Co-ordinators to exempt specified persons from all or any of the obligations under Division 1 which allow them to intercept communications on their network; and

• Section 203, which enables Communications Access Co-ordinators to make determinations relating to delivery of intercepted information and requires those determinations to specify the format of delivery to agencies, the place and manner of delivery and ancillary matters.

1.11 While the explanatory statement indicates that decisions relating to interception capability plans and variation requests from interception and data retention obligations are appropriate for Executive Level 1 and Executive Level 2 officers, it is unclear to the committee whether these are decisions in relation to the powers in sections 187B(2), 187K and/or 192 of the Act.

1.12 Given the complex and sensitive nature of the powers set out in sections 187B(2), 187K, 192 and 203 of the Act, the committee considers that they are more appropriate to be exercised by officers at SES level. This is because sections 187B(2), 187K and 192 enable Communications Access Co-ordinators to make decisions creating exemptions to provisions of the Act and section 203 enables a delegate to make a determination which it appears to the committee may be a power that is legislative in character.

1.13 The committee therefore seeks the Attorney-General's advice as to who the powers under sections 187B(2), 187K, 192 and 203 of the Act will be delegated to, and whether the instrument can be amended to require exercise of these powers to be limited to SES level officers.

Ongoing matters

1.14 The committee requests further information from relevant ministers about its significant technical scrutiny concerns in relation to the instruments listed below.

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[1] Accessible on the Federal Register of Legislation.

[2] Telecommunications (Interception and Access) Act 1979, subsections 6R(1) and 6R(2).

[3] Explanatory statement, p. 1.

[4] Senate Standing Order 23(3)(c).

[5] Senate Standing Order 23(3)(g).

[6] Telecommunications (Interception and Access) Act 1979, subsections 6R(1), 6R(2).

[7] These classification levels are determined by the Australian Public Service Commission and set out the responsibilities and duties expected at each level. More information is available at the commission's website. Information about Senior Executive Service is available on the APS website.

[8] Subsection 187A(1) of the Telecommunications (Interception and Access) Act 1979.

[9] Section 23 of the Telecommunications Act 1997.

[10] Section 36 of the Telecommunications (Interception and Access) Act 1979.