Telecommunications (Interception) Amendment Regulations 2000 (No. 1) 2000 No. 180
EXPLANATORY STATEMENT
Statutory Rules 2000 No. 180
Issued by the Authority of the Attorney-General
Telecommunications (Interception) Act 1979
Telecommunications (Interception) Amendment Regulations 2000 (No. 1)
Section 108 of the Telecommunications (Interception) Act 1979 (the Act) provides that the Governor-General may make Regulations for the purposes of the Act.
The Telecommunications (Interception) Legislation Amendment Act 2000 (the amending legislation) made a number of amendments to the Act. The amending legislation received Royal Assent on 22 June 2000. However, provisions of the amending legislation providing for named person warrants could not take effect until appropriate regulations were put in place. The Regulations prescribe new forms of warrant to authorise interception of telecommunication services as a result of the amending legislation.
The amending legislation had its origins partly in the Telecommunications Interception Policy Review that was tabled in Parliament on 25 August 1999 and partly in practical operational difficulties arising out of rapid changes in the telecommunications industry.
Schedule 2 of the amending legislation created a new form of interception warrant, the named person warrant. A named person warrant authorises the interception of any telecommunications service that the person named on the warrant uses, or is likely to use, during the currency of the warrant. Section 45A permits the issue of a named person warrant in relation to a class 1 offence. A class one offence is defined in the Act as murder, or an offence equivalent to murder, kidnapping or an offence equivalent to kidnapping, a narcotics offence either directly or indirectly participating in, assisting or encourage the commission of one of these offences. Section 46A permits the issue of named person warrants in relation to a class 2 offence. Section 5D of the Act defines a class 2 offence as an offence punishable by imprisonment for life or for a period of at least 7 years and that the offence does, or may, result in serious consequences including loss of life or serious personal injury. The Regulations prescribe templates for the new category of interception warrants issued under sections 45A and 46A of the Act.
Schedule 3 of the amending legislation made a number of miscellaneous and consequential amendments to the Act. Item 42 of Schedule 3 repealed subsection 55(2) of the Act to remove the requirement for the Australian Federal Police to execute a warrant issued under section 48 of the Act. Section 48 warrants authorise entry on premises to effect an interception.
Sub-regulation 3(5) previously prescribed a form of warrant that only permitted members of the Australian Federal Police to execute warrants under section 48 of the Act. The Regulations replaced references to the Australian Federal Police with references to an "agency". An agency means a law enforcement agency which has been declared by the Attorney-General to be an intercepting agency.
Details of the Regulations are attached.
The Regulations commenced on gazettal.
Attachment A
Details of the proposed Regulations are as follows:
Item 1 names the Regulations as the Telecommunications (Interception) Amendment Regulations 2000.
Item 2 provides that the Regulations commence on gazettal.
Item 3 notes that Schedule 1 of the amending regulations amends the existing Telecommunications (Interception) Regulations.
Schedule 1
Item 1 of Schedule 1 names the Regulations as the Telecommunications (Interception) Regulations 1987.
Item 2 of Schedule 1 amends Regulation 3 to include references to section 45A and section 46A warrants.
Item 3 of Schedule 1 substitutes the existing heading of Schedule 3 of the Regulations to now read ´Warrant under section 45 for the interception of communications".
Item 4 of Schedule 1 inserts a new schedule - Schedule 3A - into the Regulations. Schedule 3A provides the form for named person warrants under section 45A of the Act.
Item 5 of Schedule 1 substitutes the existing heading of Schedule 4 of the Regulations to now read 'Warrant under section 46 for the interception of communications".
Item 6 of Schedule 1 inserts a new schedule - Schedule 4A - into the Regulations. Schedule 4A provides the form for named person warrants under section 46A of the Act.
Item 7 of Schedule 1 replaces the reference to "Members of the Australian Federal Police" with "The *officers/*staff members (or as the case may be)".
Item 8 of Schedule 1 replaces the reference to "members of the Australian Federal Police" with "the *officers/* staff members (or as the case may be)".
Overview
The Telecommunications (Interception) Amendment Regulations 2000 (No. 1) were enacted to implement provisions of the Telecommunications (Interception) Legislation Amendment Act 2000, which itself was partly in response to the Telecommunications Interception Policy Review tabled in Parliament on 25 August 1999 and partly due to practical operational difficulties stemming from rapid changes in the telecommunications industry. This regulatory amendment was issued under section 108 of the Telecommunications (Interception) Act 1979 and received Royal Assent on 22 June 2000. The key policy objective of these regulations is to introduce new forms of interception warrants, specifically named person warrants, which allow for the interception of any telecommunications service used by a specified individual, thereby addressing the evolving landscape of telecommunications and enhancing the capacity of law enforcement agencies to intercept communications in serious criminal matters. The Regulations prescribe new templates for these warrants, replacing the exclusive reliance on the Australian Federal Police with a broader category of declared law enforcement agencies capable of executing such warrants.
Scope and Application
The Telecommunications (Interception) Amendment Regulations 2000 (No. 1) serve to implement the changes introduced by the Telecommunications (Interception) Legislation Amendment Act 2000, which received Royal Assent on 22 June 2000. These Regulations apply to both the Commonwealth and the states and territories, affecting law enforcement agencies and telecommunications providers by providing new forms of warrants for the interception of telecommunications services. Specifically, they introduce named person warrants which allow the interception of telecommunications services used by a named individual in connection with serious criminal offences, including class 1 offences such as murder or kidnapping, and class 2 offences that are punishable by significant periods of imprisonment and may result in serious harm. The Regulations expand the scope of agencies authorised to execute warrants to include any law enforcement agency declared by the Attorney-General as an intercepting agency, thereby broadening the application beyond just the Australian Federal Police. The Regulations commenced on gazettal, with Schedule 1 amending the existing Telecommunications (Interception) Regulations 1987 to incorporate the new warrant forms and agency references.
Key Provisions
The Telecommunications (Interception) Amendment Regulations 2000 (No. 1) 2000 No. 180, which amend the Telecommunications (Interception) Regulations 1987, introduce new forms of interception warrants under sections 45A and 46A of the Telecommunications (Interception) Act 1979. These warrants, referred to as named person warrants, allow for the interception of telecommunications services used or likely to be used by a specified individual in relation to certain offences. Specifically, section 45A permits the issue of a named person warrant for class 1 offences, which include murder, kidnapping, and serious narcotics offences (section 45A). Section 46A permits the issue of named person warrants for class 2 offences, which are defined as offences punishable by imprisonment for life or a term of at least 7 years, with the potential for serious consequences including loss of life or serious personal injury (section 46A).
These regulations impose several obligations on the parties involved. Law enforcement agencies must apply for the new types of warrants through the appropriate judicial authorities as per the prescribed forms and requirements set out in Schedules 3A and 4A of the amended regulations. The warrants must be specific to the individual named and the type of offence, ensuring that the interception is targeted and lawful. Additionally, the regulations mandate that any interception must cease if it is found that the warrant was issued in error or that the conditions for its issuance no longer apply.
Breaching the provisions of these regulations can lead to significant legal consequences. Unauthorized interception of telecommunications can be considered a criminal offence, with potential penalties including fines and imprisonment. For instance, under the Act, unauthorized interception of communications can attract penalties of up to $22,200 for individuals and higher for corporations, depending on the severity and intent of the breach. Furthermore, those found in violation of these regulations may also face civil liability for any damages resulting from the unlawful interception.
The regulations also clarify the role of law enforcement agencies, replacing the previous exclusive role of the Australian Federal Police with a broader definition of "agency," which includes any law enforcement agency declared by the Attorney-General to be an intercepting agency. This change aims to provide greater flexibility and ensure that the appropriate agency can execute the warrants effectively. The Regulations commenced on gazettal, making them immediately effective upon publication.