Telecommunications (Interception) Amendment Act 1995 (Cth)

Telecommunications (Interception) Amendment Act 1995

No. 141 of 1995

An Act to amend the Telecommunications (Interception) Act 1979 and the Telecommunications Act1991, and for related purposes

[Assented to 12 December 1995]

The Parliament of Australia enacts:

Short title

1. This Act may be cited as the Telecommunications (Interception) Amendment Act 1995.

Commencement

2. (1) Subject to this section, this Act commences on the day on which it receives the Royal Assent.

(2) Part 2 of Schedule 1 commences on a day to be fixed by Proclamation.

(3) If Part 2 of Schedule 1 does not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period.

Amendments

3. The Acts specified in the Schedules are amended in accordance with the applicable items in the Schedules, and the other items in the Schedules have effect according to their terms

_______________

SCHEDULE 1 Section 3

AMENDMENT OF THE TELECOMMUNICATIONS (INTERCEPTION) ACT 1979

PART 1—DEFINITION OF “CLASS 2 OFFENCE”

1. Subsection 5(1) (definition of “class 2 offence”):

Omit the definition, substitute:

“ ‘class 2 offence’ has the meaning given by section 5D;”.

2 After section 5C:

Insert:

Class 2 offences

Class 2 offences

“5D.(1) This section sets out the offences that are class 2 offences for the purposes of this Act.

Serious offences etc.

“(2) An offence is a class 2 offence if:

(a) it is an offence punishable by imprisonment for life or for a period, or maximum period, of at least 7 years; and

(b) the particular conduct constituting the offence involved, involves or would involve, as the case requires:

(i) loss of a person’s life or serious risk of loss of a person’s life; or

(ii) serious personal injury or serious risk of serious personal injury; or

(iii) serious damage to property in circumstances endangering the safety of a person; or

(iv) trafficking in prescribed substances; or

(v) serious fraud; or

(vi) serious loss to the revenue of the Commonwealth, a State or the Australian Capital Territory; or

(vii) bribery or corruption of, or by:

(A) an officer of the Commonwealth; or

(B) an officer of a State; or

(C) an officer of a Territory.

Offences involving planning and organisation

“(3) An offence is also a class 2 offence if it is an offence punishable by imprisonment for life or for a period, or maximum period, of at least 7 years, where the offence:

SCHEDULE 1—continued

(a) involves 2 or more offenders and substantial planning and organisation; and

(b) involves, or is of a kind that ordinarily involves, the use of sophisticated methods and techniques; and

(c) is committed, or is of a kind that is ordinarily committed, in conjunction with other offences of a like kind; and

(d) consists of, or involves, any of the following:

(i) theft;

(ii) handling of stolen goods;

(iii) tax evasion;

(iv) currency violations;

(v) extortion;

(vi) bribery or corruption of, or by:

(A) an officer of the Commonwealth; or

(B) an officer of a State; or

(C) an officer of a Territory;

(vii) bankruptcy violations;

(viii) company violations;

(ix) harbouring criminals;

(x) armament dealings;

(xi) a sexual offence against a person who is under 16 (including an offence against Part IIIA of the Crimes Act 1914).

Money laundering offences etc.

“(4) An offence is also a class 2 offence if it is an offence against any of the following provisions:

(a) section 81 or 83 of the Proceeds of Crime Act 1987;

(b) section 73 of the Confiscation of Proceeds of Crime Act 1989 of New South Wales;

( c) section 41Q of theCrimes (Confiscation of Profits) Act 1986 of Victoria;

(d) section 64 of theCrimes (Confiscation of Profits) Act 1989 of Queensland;

(e) section 563A of The Criminal Code of Western Australia;

(f) section 10b of the Crimes (Confiscation of Profits) Act, 1986 of South Australia;

(g) section 67 of theCrime (Confiscation of Profits) Act 1993 of Tasmania;

(h) section 74 of the Proceeds of Crime Act 1991 of the Australian Capital Territory.

SCHEDULE 1—continued

Offence against Part VIA of the Crimes Act 1914

“(5) An offence is also a class 2 offence if it is an offence against Part VIA of the Crimes Act 1914.

Offences connected with other class 2 offences

“(6) An offence is also a class 2 offence if it is an offence constituted by:

(a) aiding, abetting, counselling or procuring the commission of; or

(b) being, by act or omission, in any way, directly or indirectly, knowingly concerned in, or party to, the commission of; or

(c) conspiring to commit; an offence that is a class 2 offence under any of the preceding subsections.

Officer of a State

“(7) Despite subsection 6G(3), a reference in this section to an officer of a State includes a reference to an officer of the Police Force of a State.”.

3. Application

The amendments made by this Part apply to offences committed before or after the commencement of this item.

PART 2—SPECIAL REGISTER OF WARRANTS

Division 1—Special Register of Warrants

4. Subsection 5(1) (definition of “Register”):

Omit the definition.

5. Subsection 5(1):

Insert:

“ ‘General Register’ means the General Register of Warrants kept under section 81A;

‘Special Register’ means the Special Register of Warrants kept under section 81C;”.

6. After section 81B:

Insert:

Special Register of Warrants

Special Register of Warrants

“81C.( 1) The Commissioner of Police is to cause a Special Register of Warrants to be kept.

SCHEDULE 1—continued

Contents of Register

“(2) The Commissioner of Police is to cause to be recorded in the Special Register the following particulars in relation to each registrable expired warrant:

(a) the date of issue of the warrant;

(b) the Judge who issued the warrant;

(c) the agency to which the warrant was issued;

(d) the telecommunications service to which the warrant related;

(e) the name of the person specified in the warrant as a person using or likely to use the telecommunications service;

(f) the period for which the warrant was in force;

(g) each serious offence in relation to which the Judge who issued the warrant was satisfied, on the application for the warrant, as mentioned in paragraph 45(d) or paragraph 46(1)(d), as the case may be.

Note: 'Registrable expired warrant' is denned by subsections (3) and (4).

Registrable expired warrant—original warrant renewed

“(3) For the purposes of this section, if:

(a) a warrant was issued under section 45,46 or 48; and

(b) the warrant was an original warrant; and

(c) there were one or more renewals of the warrant; and

(d) at the end of the period of 3 months after the time (the ‘cessation time’) when the last renewal of the warrant ceased to be in force, no criminal proceedings had been instituted, or were likely to be instituted, against a person on the basis of information obtained as a result of intercepting a communication under:

(i) the warrant; or

(ii) a renewal of the warrant; and

(e) the cessation time is after the commencement of this section;

the warrant, and each renewal of the warrant, becomes a registrable expired warrant at the end of that period.

Registrable expired warrant—original warrant not renewed

“(4) For the purposes of this section, if:

(a) a warrant was issued under section 45, 46 or 48; and

(b) the warrant was an original warrant; and

(c) no renewal of the warrant was issued; and

SCHEDULE 1—continued

(d) at the end of the period of 3 months after the time (the ‘cessation time’) when the warrant ceased to be in force, no criminal proceedings had been instituted, or were likely to be instituted, against a person on the basis of information obtained as a result of intercepting a communication under the warrant; and

(e) the cessation time is after the commencement of this section;

the warrant becomes a registrable expired warrant at the end of that period.

Interpretation—criminal proceedings supported by intercepted information

“(5) A reference in this section to criminal proceedings that had been, or were likely to be, instituted on the basis of information obtained as a result of intercepting a communication under a warrant includes a reference to criminal proceedings that were, or were likely to be, supported by information obtained as a result of intercepting a communication under a warrant.

Regular submission of Special Register to Minister

Original submission

“81D.(1) Within 3 months after the commencement of this section, the Commissioner of Police must deliver the Special Register to the Minister for inspection by the Minister.

Subsequent submissions

“(2) Once at least within each succeeding period of 3 months, the Commissioner of Police must deliver to the Minister, for inspection by the Minister, any part of the Special Register that represents information recorded since the Special Register, or any part of the Special Register, was last delivered to the Minister.

Special Register and General Register to be delivered at the same time

“(3) As far as is practicable, the Commissioner of Police is to ensure that delivery of the Special Register, or a part of the Special Register, as the case requires, takes place at the same time as the delivery of a part of the General Register under subsection 81B(2).

Provision of information by eligible authorities

When section applies

“81E.(1) This section applies to an eligible authority of a State if the eligible authority is an agency.

SCHEDULE 1—continued

Commissioner may require information

“(2) The Commissioner of Police may, by written notice given to the chief officer of the eligible authority, require the chief officer to give the Commissioner of Police such information as the Commissioner of Police requires for the purposes of complying with the obligations imposed on him or her by section 81C.

Information to be given

“(3) The chief officer must give the information within the period, and in the manner, specified in the notice.”.

7. After paragraph 82(a):

Insert:

“(aa) to inspect a Commonwealth agency’s records in order to ascertain the accuracy of entries in the Special Register; and”.

Division 2—General Register of Warrants

8. Subsection 79(2):

Before “Register” insert “General”.

9. Subsection 81A(1):

Before “Register” insert “General”.

10. Subsection 81A(2):

Before “Register” insert “General”.

11. Subsection 81B(1):

Before “Register” insert “General”.

12. Subsection 81B(2):

Before “Register” (wherever occurring) insert “General”.

13. Subparagraph 82(a)(i):

Before “Register” insert “General”.

14. Transitional

Anything done before the commencement of this item in relation to the Register of Warrants kept under section 81A of the Telecommunications (Interception) Act 1979 has effect, after that commencement, as if it had been done in relation to the General Register of Warrants referred to in section 81A of the Telecommunications (Interception) Act 1979 as amended by this Act.

SCHEDULE 1—continued

PART 3—CIVIL REMEDIES

15. After section 76:

Insert:

Giving information in evidence in civil proceedings for remedial relief

“76A.(1) A person may give information obtained by intercepting a communication in contravention of subsection 7(1) in evidence in a proceeding by way of an application under section 107A for remedial relief in respect of:

(a) the interception; or

(b) the communication (in contravention of section 63) of information obtained by the interception.

“(2) A person may give designated warrant information in evidence in a proceeding by way of an application under section 107A.”.

16. Paragraph 77(1)(a):

Omit “or 76”, substitute “, 76 or 76A”.

17. Paragraph 77(1)(b):

Omit “or 76”, substitute “, 76 or 76A”.

18. After Part X:

Insert:

“PART XA—CIVIL REMEDIES

Civil remedies—unlawful interception or communication

When section applies

“107A.(1) This section applies to an interception of a communication passing over a telecommunications system if the interception was in contravention of subsection 7(1).

Aggrieved person

“(2) For the purposes of this section, a person is an aggrieved person if, and only if:

(a) the person was a party to the communication; or

(b) the communication was made on the person’s behalf.

Interception—civil court remedy

“(3) If a person (in this subsection called the ‘defendant’):

SCHEDULE 1—continued

(a) so intercepted the communication; or

(b) did an act or thing referred to in paragraph 7(1)(b) or (c) in relation to the interception;

the Federal Court of Australia or a court of a State or Territory may, on the application of an aggrieved person, grant the aggrieved person remedial relief in respect of the interception by making such orders against the defendant as the court considers appropriate.

Note: Paragraphs 7(1)(b) and (c) deal with the authorisation or enabling of interception etc.

Communication—civil court remedy

“(4) If:

(a) information was obtained by intercepting the communication; and

(b) a person (in this subsection called the ‘defendant’) communicated the information to another person in contravention of section 63;

the Federal Court of Australia or a court of a State or Territory may, on the application of an aggrieved person, grant the aggrieved person remedial relief in respect of the communication of the information by making such orders against the defendant as the court considers appropriate.

Interception—criminal court remedy

“(5) If a court convicts a person (in this subsection called the ‘defendant’) of an offence against subsection 7(1) constituted by:

(a) the interception; or

(b) the doing of an act or thing referred to in paragraph 7(1)(b) or (c) in relation to the interception;

the court may, on the application of an aggrieved person, grant the aggrieved person remedial relief in respect of the interception by making such orders against the defendant as the court considers appropriate.

Note: Paragraphs 7(1)(b) and (c) deal with the authorisation or enabling of interception etc.

Communication—criminal court remedy

“(6) If:

(a) information was obtained by intercepting the communication; and

(b) the information was communicated to a person in contravention of section 63; and

(c) a court convicts a person (in this subsection called the ‘defendant’) of an offence against section 63 constituted by the communication of the information;

SCHEDULE 1— continued

the court may, on the application of an aggrieved person, grant the aggrieved person remedial relief in respect of the communication of the information by making such orders against the defendant as the court considers appropriate.

Orders

“(7) Without limiting the orders that may be made under this section against a person (in this subsection called the ‘defendant’) in respect of a particular interception or a particular communication of information, a court may make an order of one or more of the following kinds:

(a) an order declaring the interception or communication, as the case requires, to have been unlawful;

(b) an order that the defendant pay to the aggrieved person such damages as the court considers appropriate;

(c) an order in the nature of an injunction (including a mandatory injunction);

(d) an order that the defendant pay to the aggrieved person an amount not exceeding the amount that, in the opinion of the court, represents the total gross income derived by the defendant as a result of the interception or communication, as the case requires.

Terms etc. of orders

“(8) Without limiting the orders that may be made by a court under this section, an order may:

(a) include such provisions as the court considers necessary for the purposes of the order; and

(b) be made either unconditionally or subject to such terms and conditions as the court determines.

Injunctive relief—variation etc.

“(9) A court may revoke or vary an order in the nature of an injunction made by the court under this section.

Punitive damages

“(10) A reference in paragraph (7)(b) to damages includes a reference to damages in the nature of punitive damages.

Minor irregularities in warrants etc.

“(11) Despite subsection (1) of this section, this section does not apply to an interception that contravenes subsection 7(1) only because of a defect or irregularity (other than a substantial defect or irregularity):

SCHEDULE 1— continued

(a) in, or in connection with the issue of, a document purporting to be a warrant; or

(b) in connection with the execution of a warrant, or the purported execution of a document purporting to be a warrant.

Limitation periods etc.

Interception—civil court remedy

“107B.(1) An application under subsection 107A(3) for the grant of remedial relief in respect of an interception is to be made within 6 years after the end of the interception.

Communication—civil court remedy

“(2) An application under subsection 107A(4) for the grant of remedial relief in respect of a communication of information is to be made within 6 years after the communication.

Criminal court remedies

“(3) An application under subsection 107A(5) or (6) for the grant of remedial relief is not subject to any limitation period, but must be made as soon as practicable after the conviction concerned.

No limitation on other liability

No limitation

“107C.(1) This Part does not limit any liability (whether criminal or civil) that a person has under any other provision of this Act or under any other law.

Remedial relief even if defendant convicted of offence

“(2) An application under subsection 107A(3) or (4) may be made even if the defendant referred to in that subsection has been convicted of an offence under, or arising out of, this Act.

Concurrent operation of State and Territory laws

“107D. This Part is not intended to exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with this Part.

State or Territory courts—jurisdictional limits

“107E. This Part does not enable an inferior court of a State or Territory to grant remedial relief of a kind that the court is unable to grant under the law of that State or Territory.

SCHEDULE 1—continued

Extended meaning of “conviction”—orders under section 19B of the Crimes Act 1914

“107F. A reference in this Part to the conviction of a person of an offence includes a reference to the making of an order under section 19B of the Crimes Act 1914 in relation to a person in respect of an offence.

Note: Section 19B of the Crimes Act 1914 empowers a court that has found a person to have committed an offence to take action without proceeding to record a conviction.”.

19. Application

The amendments made by this Part apply to the grant of remedial relief as follows:

(a) if the grant is in respect of an interception that contravened subsection 7(1) of the Telecommunications (Interception) Act 1979—the amendments apply to a contravention that occurs after the commencement of this item;

(b) if the grant is in respect of a communication of information that contravened section 63 of the Telecommunications (Interception) Act 1979—the amendments apply to a contravention that occurs after the commencement of this item, even if the information was obtained by an interception that occurred before the commencement of this item.

PART 4—DISCLOSURE OF INFORMATION ABOUT THE EXISTENCE OF A WARRANT ETC.

20. Subsection 5(1):

Insert:

“ ‘designated warrant information’ has the meaning given by section 6EA;”.

21. After section 6E:

Insert:

Designated warrant information

“6EA. A reference in this Act to designated warrant information is a reference to:

(a) information about any of the following:

(i) an application for a warrant;

(ii) the issue of a warrant;

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

(iv) the expiry of a warrant; or

SCHEDULE 1— continued

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

(i) the telecommunications service to which a warrant relates; or

(ii) a person specified in a warrant as a person using or likely to use the telecommunications service to which the warrant relates.”.

22. Section 63:

Add at the end:

“(2) Subject to this Part, a person must not, after the commencement of this subsection:

(a) communicate designated warrant information to another person; or

(b) make use of designated warrant information; or

(c) make a record of designated warrant information; or

(d) give designated warrant information in evidence in a proceeding.”.

23. After section 63:

Insert:

Dealing in designated warrant information for the purposes of Part III, VI, VIII or IX

“63AA. A person may, for the purposes of Part III, VI, VIII or IX:

(a) communicate designated warrant information to another person; or

(b) make use of designated warrant information; or

(c) make a record of designated warrant information; or

(d) give designated warrant information in evidence in a proceeding.”.

24. Section 63B:

Add at the end:

“(3) An employee of a carrier may, in the performance of his or her duties as such an employee, communicate or make use of, or cause to be communicated, designated warrant information if the information is reasonably necessary to enable the interception of a communication under a warrant.

“(4) An employee of a carrier may communicate or cause to be communicated to another carrier, or to an employee of another carrier, designated warrant information if the information is reasonably necessary to enable the interception of a communication under a warrant.”.

25. Subsection 64(1):

Omit “, lawfully obtained information other than section 11A information.”, substitute:

SCHEDULE 1— continued

“the following:

(a) lawfully obtained information other than section 11A information;

(b) designated warrant information.”.

26. Subsection 65(1):

Omit lawfully obtained information.”, substitute:

“the following:

(a) lawfully obtained information;

(b) designated warrant information.”.

27. Section 65A:

Omit “, lawfully obtained information other than section 11A information.”, substitute:

“the following:

(a) lawfully obtained information other than section 11A information;

(b) designated warrant information.”.

28. Section 67:

Omit lawfully obtained information other than section 11A information.”, substitute:

“the following:

(a) lawfully obtained information other than section 11A information;

(b) designated warrant information.”.

29. Section 68:

After “originally obtained by the originating agency” insert “or designated warrant information”.

30. Section 74:

Add at the end:

‘(3) A person may give designated warrant information in evidence in an exempt proceeding.”.

31. Paragraph 76(c):

Omit “section”, substitute “subsection”.

32. Section 76:

Add at the end:

“(2) A person may give designated warrant information in evidence in a proceeding by way of a prosecution for:

SCHEDULE I— continued

(a) an offence against subsection 7(1); or

(b) an offence against section 63; or

(c) an ancillary offence relating to an offence of a kind referred to in paragraph (a) or (b) of this subsection.”.

33. Section 77:

Add at the end:

“(3) Designated warrant information is admissible in evidence in a proceeding only to the extent that section 63AA, 74, 76 or 76A permits a person to give designated warrant information in evidence in that proceeding.

“(4) For the purpose of determining the extent (if any) to which section 63AA, 74, 76 or 76A permits a person to give designated warrant information in evidence in a proceeding:

(a) a person may:

(i) communicate the information to another person; or

(ii) make use of the information; or

(iii) make a record of the information; or

(iv) give the information in evidence in the proceeding; and

(b) the information is admissible in evidence in the proceeding.”.

34. Application

The amendments made by this Part apply in relation to a warrant issued before or after the commencement of this item.

PART 5—REPORTING OBLIGATIONS

Division 1—Reports to the Minister

35. Subsection 94(2):

Omit the subsection, substitute:

“(2) The chief officer of a Commonwealth agency must give to the Minister, within 3 months after a warrant issued to the agency ceases to be in force, a written report containing:

(a) information about:

(i) the use made by the agency of information obtained by interceptions under the warrant; and

(ii) the communication of such information to persons other than officers of the agency; and

SCHEDULE 1—continued

(iii) the number of arrests that have been, or are likely to be, made on the basis of such information; and

(b) an assessment of the usefulness of information obtained by interceptions under the warrant.”.

36. Application

The amendment made by this Division applies to a warrant that ceases to be in force after the commencement of this item.

Division 2—Reports by the Minister

37. Section 102:

Add at the end:

“(3) The report is to set out, for:

(a) each Commonwealth agency; and

(b) each eligible authority of a State, where the eligible authority was an agency at any time during the year to which the report relates;

the percentage worked out using the formula:

where:

‘Eligible warrants’ means the number of warrants that satisfy the following conditions:

(a) the warrant was issued to the agency or authority, as the case requires;

(b) the warrant was in force during the year to which the report relates;

(c) a prosecution was instituted, or was likely to be instituted, on the basis of information obtained by interceptions under:

(i) the warrant; or

(ii) if the warrant was a renewal of an original warrant:

(A) the original warrant; or

(B) any other renewal of the original warrant; or

(iii) if the warrant was an original warrant—any renewal of the original warrant;

‘Total warrants’ means the number of warrants that were:

(a) issued to the agency or authority, as the case requires; and

(b) in force during the year to which the report relates.

SCHEDULE 1—continued

“(4) The report is to set out the percentage worked out using the formula:

where:

‘Eligible warrants’ means the number of warrants that satisfy the following conditions:

(a) the warrant was issued to:

(i) a Commonwealth agency; or

(ii) an eligible authority of a State, where the eligible authority was an agency at any time during the year to which the report relates;

(b) the warrant was in force during the year to which the report relates;

(c) a prosecution was instituted, or was likely to be instituted, on the basis of information obtained by interceptions under:

(i) the warrant; or

(ii) if the warrant was a renewal of an original warrant:

(A) the original warrant; or

(B) any other renewal of the original warrant; or

(iii) if the warrant was an original warrant—any renewal of the original warrant;

‘Total warrants’ means the number of warrants that were:

(a) issued to:

(i) Commonwealth agencies; and

(ii) eligible authorities of States, where the eligible authorities were agencies at any time during the year to which the report relates; and

(b) in force during the year to which the report relates.

“(5) A reference in this section to a prosecution that was instituted, or was likely to be instituted, on the basis of information obtained by interceptions under a warrant includes a reference to a prosecution that was supported, or likely to be supported, by information obtained by interceptions under a warrant.”.

38. After paragraph 103(a):

Insert:

“(aa) for:

(i) each Commonwealth agency; and

SCHEDULE 1—continued

(ii) each eligible authority of a State, where the eligible authority was an agency at any time during the year to which the report relates;

the amount worked out using the formula:

where:

‘Total warrant expenditure’ means the total expenditure (including expenditure of a capital nature) incurred by the agency or the authority, as the case requires, in connection with the execution of warrants during the year to which the report relates; ‘Number of warrants’ means the number of warrants to which the total warrant expenditure relates; and”.

39. Application

The amendments made by this Division apply to a report relating to a financial year beginning after the commencement of this item.

PART 6—AUTHORITY OF EMPLOYEES OF CARRIERS TO INTERCEPT COMMUNICATIONS

40. Paragraph 7(2)(a):

Omit the paragraph, substitute:

“(a) an act or thing done by an employee of a carrier in the course of his or her duties for or in connection with:

(i) the installation of any line, or the installation of any equipment, used or intended for use in connection with a telecommunications service; or

(ii) the operation or maintenance of a telecommunications system; or

(iii) the identifying or tracing of any person who has contravened, or is suspected of having contravened or being likely to contravene, a provision of Part VIIB of the Crimes Act 1914;

where it is reasonably necessary for the employee to do that act or thing in order to perform those duties effectively;”.

41. Paragraph 7(2)(aa):

After “line” insert “, where it is reasonably necessary for the person to intercept the communication in order to perform those duties effectively”.

SCHEDULE 1—continued

42. After subsection 7(2):

Insert:

“(2A) For the purposes of paragraphs (2)(a) and (aa), in determining whether an act or thing done by a person was reasonably necessary in order for the person to perform his or her duties effectively, a court is to have regard to such matters (if any) as are specified in, or ascertained in accordance with, the regulations.”.

______________

SCHEDULE 2

AMENDMENT OF THE TELECOMMUNICATIONS ACT 1991

1. Paragraph 62(f):

Omit “74”, substitute “73A, 74”.

2. After section 73:

Insert:

Interception capability

When section applies

“73A.(1) This section applies to the holder of a general telecommunications licence or a public mobile licence.

Licence condition

“(2) It is a condition of the licence that the holder must comply with subsection (4).

Minister may require interception capability

‘‘(3) The Minister may give the holder a written notice requiring that a telecommunications system operated, or proposed to be operated, by the holder have a specified kind of interception capability.

Note: ‘Interception capability' is defined by subsection (8).

Interception capability to be provided

“(4) If a requirement is in force, the holder must provide the interception capability in accordance with the requirement and on such terms and conditions as are:

(a) agreed between the following parties:

(i) the holder;

(ii) the agency or agencies specified by the Minister in the notice; or

(b) failing agreement, determined by an arbitrator appointed by the parties.

If the parties fail to agree on the appointment of an arbitrator, the arbitrator is to be appointed by AUSTEL.

Terms and conditions—compliance with principles

“(5) The terms and conditions on which the holder is to provide an interception capability are to comply with the following principles:

(a) the principle that the holder is to incur the costs (whether of a capital nature or otherwise) relating to the creation or development of the interception capability;

SCHEDULE 2—continued

(b) the principle that the holder may recover those costs, over time, from the other party or parties.

This subsection does not, by implication, limit subsection (4).

Terms and conditions—timing of implementation of requirement

“(6) Without limiting subsection (4), a term or condition agreed or determined, as the case requires, under that subsection may relate to the period within which the requirement is to be implemented.

Conduct of arbitration

“(7) The regulations may make provision for and in relation to the conduct of an arbitration under this section.

Meaning of "interception capability”

“(8) For the purposes of this section, a telecommunications system operated, or proposed to be operated, by the holder has an interception capability if, and only if:

(a) assuming that a warrant were issued to an agency; and

(b) assuming that the warrant authorised the interception of a communication passing over the system;

the system would be capable of enabling that communication to be intercepted.

Expressions to have the same meaning as in the Telecommunications (Interception) Act 1979

“(9) Unless the contrary intention appears, an expression used in this section and in the Telecommunications (Interception) Act 1979 has the same meaning in this section as it has in that Act.

Meaning of “agency"

“(10) In this section:

‘agency’ means:

(a) an agency within the meaning of Part VI of the Telecommunications (Interception) Act 1979; or

(b) the Australian Security Intelligence Organization.

References to “agency” in subsection (4)

“(11) A reference in subsection (4) to an agency includes a reference to:

(a) in the case of an agency of a State—the State on behalf of the agency; and

(b) in the case of an agency of the Commonwealth—the Commonwealth on behalf of the agency.

SCHEDULE 2—continued

Severability

“(12) This section has no effect to the extent (if any) to which it purports to authorise:

(a) the imposition of taxation (within the meaning of section 55 of the Constitution): or

(b) the acquisition of property (within the meaning of paragraph 51 (xxxi) of the Constitution) otherwise than on just terms (within the meaning of that paragraph).”.

3. Application

The amendments made by this Schedule apply to:

(a) a licence in force immediately before the commencement of this item; and

(b) a licence granted after the commencement of this item.

________________

NOTES ABOUT SECTION HEADINGS

1. On the day on which this Act receives the Royal Assent, the headings to sections of the Telecommunications (Interception) Act 1979 are altered as follows:

(a) the heading to section 63 is altered by adding at the end “or designated warrant information”;

(b) the heading to section 76 is altered by omitting "where interception otherwise unlawful” and substituting “in criminal proceedings under this Act”;

(c) the heading to section 77 is altered by inserting “and designated warrant information” after “material”.

2. On the commencement of Part 2 of Schedule 1 to this Act, the headings to sections of the Telecommunications (Interception) Act 1979 arc altered as follows:

(a) the heading to section 81A is altered by inserting "General” before “Register”;

(b) the heading to section 81B is altered by inserting “General” before “Register”.

[Minister's second reading speech made in—

Senate on 7 December 1995

House of Representatives on 1 December 1995