EXPLANATORY STATEMENT
Issued by the authority of the Attorney-General
Telecommunications (Interception and Access) Act 1979
Interception Capability Plan Determination 2018 (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 TIA Act provides that the content of 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.
Paragraph 195(4) of the TIA Act allows the Attorney-General to determine additional matters that must be set out in the IC plans of C/NCSPs that are specifically notified of the additional requirements. On 1 February 2008, the then Attorney-General made the Interception Capability Plan Determination 2008 (No.1) (the previous Determination).
The previous Determination provided that where the Communications Access Co‑ordinator had notified a C/NCSP in writing, the C/NCSP was required to include 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 C/NCSPs 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.
The previous Determination is due to sunset on 1 April 2018, and will cease to have effect. Accordingly, the Attorney‑General has made the Interception Capability Plan Determination 2018 (No.1) (the Determination) in terms identical to the previous Determination.
The Determination provides that if a C/NCSP has been notified in writing by the Communications Access Co-ordinator that C/NCSP must include in its IC plan a description of the arrangements that the C/NCSP 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 C/NCSPs will also be required to protect information relating to interception and provide other reasonably necessary assistance relating to interception to national security and law enforcement agencies.
In accordance with section 195(5) of the TIA Act, the Australian Communications and Media Authority has been consulted before making this Determination.
The Determination is a legislative instrument for the purposes of the Legislation Act 2003, and commences on 1 April 2018.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Interception Capability Plan Determination 2018 (No. 1)
This Determination is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Determination
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 TIA Act provides that the content of 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.
The Interception Capability Plan Determination 2018 (No.1) (the Determination) is made under section 195(4) of the TIA Act in relation to additional matters that must be set out in an IC plan. The Determination is a legislative instrument for the purposes of the Legislation Act 2003, and commences on 1 April 2018.
On 1 February 2008, the then Attorney-General made the Interception Capability Plan Determination 2008 (No.1) (the previous Determination), which is due to sunset on 1 April 2018, and will cease to have effect. The Attorney‑General has made the Determination on terms identical to the previous Determination.
The Determination provides that if a carrier or nominated carriage service provider (C/NCSP) has been notified in writing by the Communications Access Co-ordinator, the C/NCSP must include in its IC plan a description of the arrangements that the C/NCSP will put in place to maintain their interception capability within Australia and under the control of persons holding appropriate national security clearances. The notified C/NCSP s must also protect information relating to interception and provide other reasonably necessary assistance relating to interception to national security and law enforcement agencies.
The instrument gives effect to the requirement for notified C/NCSPs to include additional matters their annual IC Plans, which are governed by the primary legislation.
Human rights implications
The Determination engages the right to protection against arbitrary and unlawful interferences with privacy under article 17 of the International Covenant on Civil and Political Rights (ICCPR).
Article 17 - privacy
Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, or to unlawful attacks on his honour or reputation, and that everyone has the right to the protection of the law against such interference or attacks.
The use of the term ‘arbitrary’ means that any interference with privacy must be in accordance with the provisions, aims and objectives of the ICCPR and should be reasonable in the particular circumstances. The United Nations Human Rights Committee has interpreted ‘reasonableness’ to imply that any limitation must be proportionate and necessary in the circumstances.
This instrument will require the provision of information, which will permit the oversight of capabilities required under existing legislation that limit the right to privacy under Article 17.
The right to privacy under the ICCPR can be limited as it is not an absolute right. The right can be limited if the limitation is not incompatible with the right itself and the limitation is authorised by law, is for a legitimate objective and is reasonable, necessary and proportionate to that objective. Interferences with privacy may be permissible where they are authorised by law and not arbitrary. In order for an interference with the right to privacy not to be arbitrary, the interference must be for a reason consistent with the provisions, aims and objectives of the ICCPR and be reasonable under the circumstances.
Interception of telecommunications may only occur subject to a warrant issued by an issuing authority, namely an eligible judge or a nominated member of the Administrative Appeals Tribunal. Before an issuing authority may issue a warrant they must be satisfied that interception is appropriate in the circumstances. In coming to this conclusion the issuing authority must consider several factors, including the privacy impacts of the interception, the gravity of the offence, the likely usefulness of interception information to the relevant investigation and the extent to which other methods of investigating the offence have been used or are available. To ensure the integrity of this regime, access to, and use of, interception material, stored communications and telecommunications data is subject to checks and balances as provided by the TIA Act. These measures ensure that an individual’s privacy is not unduly burdened. The instrument will require the provision of information relating to interception capabilities, which exist to serve the legitimate objective of the investigation and prosecution of serious crime and corruption and is reasonable, necessary and proportionate to achieving this end.
Conclusion
The instrument is compatible with human rights because it advances the protection of human rights, and to the extent that it limits human rights, those limitations are authorised by law, reasonable, necessary and proportionate.