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 That provision was repealed by the commencement of the Telecommunications (Interception and Access) Amendment Act 2007 and replaced with new paragraph 195(2)(f) of the TIA Act.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.
Overview
The Interception Capability Plan Determination 2008 (No.1) was introduced to address the need for specific telecommunications carriers and nominated carriage service providers to maintain their interception facilities within Australia under the control of appropriately cleared personnel. Enacted by the Attorney-General under Part 5-4 of the Telecommunications (Interception and Access) Act 1979, the determination ensures that these entities include certain information in their annual Interception Capability Plans. The policy objective of this determination is to safeguard sensitive information, such as interception warrant details, by ensuring that the interception capabilities are maintained within Australia and under the control of individuals holding appropriate national security clearances. This legislative instrument replaces the previous Interception Capability Plan Determination 2002 (No.1), which was rendered obsolete by the repeal of a related provision in the Telecommunications Act 1997.
Scope and Application
The Interception Capability Plan Determination 2008 (No. 1) applies to all licensed telecommunications carriers and specific carriage service providers nominated by the Attorney-General, requiring them to submit an annual Interception Capability Plan (IC Plan) to the Communications Access Coordinator. This requirement is mandated under Part 5-4 of the Telecommunications (Interception and Access) Act 1979. The IC Plan must detail the policies and strategies of the carriers or providers regarding their interception responsibilities, the locations of interception points on their networks, and a list of employees responsible for interception matters. Additionally, the Minister may, by legislative instrument, determine further information to be included in the IC Plan. Specifically, carriers or providers who are notified in writing by the Communications Access Coordinator must include in their IC Plan a description of the arrangements they have put in place, under the control of individuals holding appropriate national security clearances, to provide interception capabilities within Australia. These carriers and providers are also required to protect information relating to interception and to provide necessary assistance to national security and law enforcement agencies. This Determination replaces the previous Interception Capability Plan Determination 2002 (No. 1) due to the repeal of certain provisions in the Telecommunications Act 1997. The Determination is a legislative instrument under the Legislative Instruments Act 2003 and takes effect upon registration.
Key Provisions
The Interception Capability Plan Determination 2008 (No.1) sets out specific requirements for certain telecommunications carriers and carriage service providers in relation to their annual Interception Capability Plans (IC Plans) under the Telecommunications (Interception and Access) Act 1979 (TIA Act). Specifically, licensed telecommunications carriers and those specifically nominated by the Attorney-General must submit an annual IC Plan to the Communications Access Co-ordinator (subsection 195(2) of the TIA Act). This plan must include the policies and strategies of the carrier or nominated carriage service provider (C/NCSP) in relation to their interception responsibilities, the locations of interception points on their networks, and a list of their employees responsible for interception matters (subsection 195(2)(a), (b), and (d)). The Minister, under paragraph 195(2)(f) of the TIA Act, has the power to determine additional information to be included in these IC Plans.
The Determination requires that if a carrier or nominated carriage service provider has been notified in writing by the Communications Access Co-ordinator, they must include in their annual 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 (subsection 195(2)(f)). Additionally, the notified carriers and providers must protect information relating to interception and provide other reasonably necessary assistance relating to interception to national security and law enforcement agencies. These obligations are aimed at safeguarding sensitive or security-classified information, such as interception warrant information.
The Determination imposes specific obligations on the notified carriers and providers to ensure that their interception capabilities are maintained within Australia and under the control of individuals with the appropriate national security clearances. They are required to describe these arrangements in their annual IC Plans. Failure to comply with these obligations may have legal consequences, although the Determination itself does not specify the exact nature of these consequences. The obligations extend to protecting information related to interception and providing necessary assistance to national security and law enforcement agencies, ensuring that the carriers and providers contribute to the safeguarding of sensitive information.
There are no explicit penalties or civil/criminal consequences detailed within the Determination itself. However, any breach of the obligations outlined in the Determination could potentially result in enforcement actions under the TIA Act or other relevant legislation. Such enforcement actions might include fines, corrective orders, or other penalties as prescribed by the relevant statutes. The specific penalties for non-compliance would depend on the nature and severity of the breach, and would be determined in accordance with the provisions of the TIA Act and any other applicable laws.