EXPLANATORY STATEMENT
Issued by the authority of the Attorney-General
Telecommunications (Interception and Access) Act 1979
Interception Capability Plan Determination 2008 (No.1)
Under Part 5-4 of the Telecommunications (Interception and Access) Act 1979 (the TIA Act), all licensed telecommunications carriers, and those carriage service providers specifically nominated by the Attorney-General, are required to submit an annual Interception Capability Plan (IC Plan) to the Communications Access Co-ordinator. Subsection 195(2) of the Act provides that the content of interception capability plans (IC Plans) must include, inter alia, the carrier or nominated carriage service provider (C/NCSP)’s policies and strategies in relation to their interception responsibilities, the locations of interception points on their networks and a list of their employees with responsibility for interception matters. Further, under paragraph 195(2)(f) the Minister may, by legislative instrument, determine additional information to be included in IC Plans.
Previously, paragraph 329(1)(e) of the Telecommunications Act 1997 (the Telecommunications Act) allowed the Minister for Communications to determine additional matters that were to be relevant to the IC Plans of C/NCSPs that were specifically notified of the additional requirements. The then Minister made the Interception Capability Plan Determination 2002 (No.1) (the previous Determination) on 13 May 2002. That provision was repealed by the commencement of the Telecommunications (Interception and Access) Amendment Act 2007 and replaced with new paragraph 195(2)(f) of the TIA Act.
The previous Determination provided that where the Agency Co-ordinator had notified a C/NCSP in writing, the C/NCSP must have included in their annual IC Plan a description of the arrangements that the C/NCSP had put in place to maintain their interception capability within Australia and under the control of persons holding appropriate national security clearances. The notified carriers and providers were also obliged to protect information relating to interception and provide other reasonably necessary assistance relating to interception to national security and law enforcement agencies. The purpose of ensuring certain C/NCSPs maintain their interception facilities in Australia is to safeguard sensitive or security-classified information such as interception warrant information.
Because of the repeal of paragraph 329(1)(e) of the Telecommunications Act, the previous Determination no longer has effect. Accordingly, the Attorney‑General has made the Interception Capability Plan Determination 2008 (No.1) (the Determination) to provide that if a carrier or nominated carriage service provider has been notified in writing by the communications access co-ordinator, the carrier or provider must include in its IC plan a description of the arrangements that the carrier or provider will put in place, and under the control of persons holding appropriate national security clearances, the means to provide interception capabilities within Australia. The notified carriers and providers will also protect information relating to interception and provide other reasonably necessary assistance relating to interception to national security and law enforcement agencies.
The Determination is a legislative instrument for the purposes of the Legislative Instruments Act 2003. The Determination commences on registration.