Telecommunications (Interception and Access) Amendment Act 2008

Administered by Department of Home Affairs

Legislation au C2008A00023 In force Act

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Telecommunications (Interception and Access) Amendment Act 2008

 

No. 23, 2008

 

 

 

 

 

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

 

 

Contents

1 Short title

2 Commencement

3 Schedule(s)

Schedule 1—Telecommunications (Interception and Access) Act 1979

 

 

 

Telecommunications (Interception and Access) Amendment Act 2008

No. 23, 2008

 

 

 

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

[Assented to 26 May 2008]

The Parliament of Australia enacts:

1  Short title

  This Act may be cited as the Telecommunications (Interception and Access) Amendment Act 2008.

2  Commencement

 (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1.  Sections 1 to 3 and anything in this Act not elsewhere covered by this table

The day on which this Act receives the Royal Assent.

26 May 2008

2.  Schedule 1, items 1 to 19

The day after this Act receives the Royal Assent.

27 May 2008

3.  Schedule 1, items 20 to 25

A single day to be fixed by Proclamation.

However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period.

1 July 2008

(see F2008L02096)

4.  Schedule 1, items 26 to 34

The day on which this Act receives the Royal Assent.

26 May 2008

5.  Schedule 1, item 35

At the same time as the provision(s) covered by table item 3.

1 July 2008

6.  Schedule 1, item 36

The day on which this Act receives the Royal Assent.

26 May 2008

7.  Schedule 1, item 37

At the same time as the provision(s) covered by table item 3.

1 July 2008

8.  Schedule 1, items 38 and 39

The day on which this Act receives the Royal Assent.

26 May 2008

9.  Schedule 1, item 39A

At the same time as the provision(s) covered by table item 3.

1 July 2008

10.  Schedule 1, items 40 to 43

The day on which this Act receives the Royal Assent.

26 May 2008

11.  Schedule 1, item 43A

1 July 2008.

1 July 2008

12.  Schedule 1, items 44 to 46

The day on which this Act receives the Royal Assent.

26 May 2008

13.  Schedule 1, item 46A

1 July 2008.

1 July 2008

14.  Schedule 1, items 47 and 48

The day on which this Act receives the Royal Assent.

26 May 2008

Note: This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.

 (2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.

3  Schedule(s)

  Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.


Schedule 1—Telecommunications (Interception and Access) Act 1979

 

1  Subsection 5F(3)

Repeal the subsection, substitute:

 (3) Subsection (2) ceases to have effect at the end of 12 December 2009.

2  Subsection 5G(3)

Repeal the subsection, substitute:

 (3) Subsection (2) ceases to have effect at the end of 12 December 2009.

3  Subparagraph 9A(1)(b)(ii)

After “telecommunications device”, insert “or particular telecommunications devices”.

4  Paragraph 9A(1A)(b)

After “telecommunications device”, insert “or telecommunications devices”.

5  Subsection 9A(1A) (note)

After “telecommunications device”, insert “or telecommunications devices”.

6  Paragraph 9A(2)(ba)

Repeal the paragraph, substitute:

 (ba) if the warrant would authorise interception of communications made by means of a telecommunications device or telecommunications devices identified in the warrant—must include details (to the extent these are known to the Director‑General of Security) sufficient to identify the telecommunications device or telecommunications devices that the person is using, or is likely to use; and

7  Subsection 9A(3)

After “telecommunications device”, insert “or telecommunications devices”.

8  Subparagraph 11B(1)(a)(ii)

After “telecommunications device”, insert “or particular telecommunications devices”.

9  Paragraph 11B(1A)(b)

After “telecommunications device”, insert “or telecommunications devices”.

10  Subsection 11B(1A) (note)

After “telecommunications device”, insert “or telecommunications devices”.

11  Paragraph 11B(2)(ba)

Repeal the paragraph, substitute:

 (ba) if the warrant would authorise interception of communications made by means of a telecommunications device or telecommunications devices identified in the warrant—must include details (to the extent these are known to the Director‑General of Security) sufficient to identify the telecommunications device or telecommunications devices that the person is using, or is likely to use; and

12  Subsection 11B(3)

After “telecommunications device”, insert “or telecommunications devices”.

13  Paragraph 16(1)(aa)

After “telecommunications device”, insert “or telecommunications devices”.

14  Paragraph 16(1A)(b)

After “telecommunications device”, insert “or telecommunications devices”.

14A  Paragraph 16(2)(a)

After “telecommunications device”, insert “or telecommunications devices”.

14B  Paragraph 16(2)(b)

Omit “that device”, substitute “the device or devices”.

15  Paragraph 35(1)(b)

Repeal the paragraph.

16  Paragraph 35(1)(c)

Omit “the responsible Minister”, substitute “a specified Minister (in this subsection called the responsible Minister) of that State”.

17  Paragraph 35(1)(e)

Repeal the paragraph, substitute:

 (e) requiring the responsible Minister to give to the Minister, as soon as practicable after a report of a kind referred to in paragraph (c) or (d) is given to the responsible Minister, a copy of the report;

18  Subsection 35(2)

Repeal the subsection, substitute:

 (2) The Minister must not make a declaration under section 34 in relation to an eligible authority of a State unless the Minister is satisfied that that State has entered into an agreement to pay all expenses connected with the issue of warrants to the authority.

19  After section 35

Insert:

36  State laws requiring copies of documents to be given to responsible Minister

 (1) Nothing in this Division is to be taken to preclude a law of a State from requiring the chief officer of the eligible authority to give to a specified Minister (the responsible Minister) of that State a copy of each warrant issued to the eligible authority, and of each instrument under section 52 or 57 revoking such a warrant.

 (2) If a State makes a law of the kind mentioned in subsection (1), then, for the purposes of section 63AA, the chief officer of the eligible authority is taken to be communicating interception warrant information for the purposes of this Part by giving documents to the responsible Minister to comply with the requirement.

20  Paragraph 42(4A)(ba)

Repeal the paragraph, substitute:

 (ba) if the warrant would authorise interception of communications made by means of a telecommunications device or telecommunications devices identified in the warrant—details (to the extent these are known to the chief officer) sufficient to identify the telecommunications device or telecommunications devices that the person is using, or is likely to use; and

21  Subparagraph 46A(1)(d)(ii)

After “telecommunications device”, insert “or particular telecommunications devices”.

22  Subparagraph 46A(1)(d)(ii)

Omit “a person”, substitute “the person”.

23  Subsection 46A(1) (note)

After “telecommunications device”, insert “or telecommunications devices”.

24  Subparagraph 46A(2)(a)(ii)

After “telecommunications device”, insert “or particular telecommunications devices”.

25  Subsection 46A(3)

After “telecommunications device”, insert “or telecommunications devices”.

26  Subsection 52(2)

Repeal the subsection, substitute:

 (2) Where a warrant issued to an agency is revoked under subsection (1), the chief officer of the agency must cause a copy of the instrument of revocation to be given as soon as practicable to the Secretary of the Department.

27  Section 53

Repeal the section.

28  Paragraph 57(1)(a)

Repeal the paragraph.

29  Subsection 57(2)

Repeal the subsection, substitute:

 (2) The chief officer of an agency may at any time, by writing signed by him or her, revoke a warrant issued to the agency after causing the chief officer of any other agency that is exercising authority under the warrant to be informed forthwith that the chief officer proposes to revoke the warrant.

30  Paragraph 57(3)(a)

Repeal the paragraph.

31  After section 59

Insert:

59A  Notification to Secretary of the Department

 (1) Where a Part 2‑5 warrant is issued to an agency, the chief officer of the agency must cause a copy of the warrant to be given to the Secretary of the Department as soon as practicable.

 (2) Where:

 (a) it is proposed, under a warrant issued under section 46A, to intercept communications made to or from a telecommunications service; and

 (b) the warrant is not a warrant that authorises interception of communications made by means of a telecommunications device or telecommunications devices identified in the warrant; and

 (c) the service was not identified in the warrant;

the chief officer must cause the Secretary of the Department to be given, as soon as practicable, a description in writing of the service sufficient to identify it.

32  Subsection 60(1)

Omit “the chief officer”, substitute “a certifying officer”.

33  Subsection 60(2)

Repeal the subsection.

34  Subsection 60(3)

Omit “the chief officer”, substitute “a certifying officer”.

35  Paragraph 60(4)(aa)

After “telecommunications device”, insert “or telecommunications devices”.

36  Subsection 60(4)

Omit “the chief officer”, substitute “a certifying officer of the agency”.

37  Paragraph 60(4A)(b)

After “telecommunications device”, insert “or telecommunications devices”.

38  Subsection 60(4A)

Omit “certifying person”, substitute “certifying officer of the agency”.

39  Paragraph 60(5)(b)

Omit “the chief officer of the agency to which the warrant was issued, or a certifying officer of that agency,”, substitute “a certifying officer of that agency”.

39A  Paragraph 60(5)(b)

After “a particular device”, insert “or particular devices”.

40  Subsection 60(5)

Omit “the chief officer or”.

41  Paragraph 80(b)

Omit “paragraph 53(1)(b) of the issue of such a warrant”, substitute “subsections 59A(2) and (3)”.

42  Subsection 94(1)

Repeal the subsection.

43  Paragraph 100(1)(ea)

Omit “, (d)”.

43A  Paragraph 100(1)(ec)

Repeal the paragraph, substitute:

 (ec) in relation to all named person warrants issued during that year on application made by each agency or authority:

 (i) the total number of telecommunications services intercepted under those of the warrants that did not authorise the interception of communications made by means of a telecommunications device or telecommunications devices identified in the warrant; and

 (ii) the total number of telecommunications services intercepted under those of the warrants that did authorise the interception of communications made by means of a telecommunications device or telecommunications devices identified in the warrant; and

 (iii) the total number of telecommunications devices by means of which communications were intercepted under those of the warrants that did authorise the interception of communications made by means of a telecommunications device or telecommunications devices identified in the warrant; and

44  Paragraph 100(1)(ee)

Repeal the paragraph.

45  Paragraph 100(1)(ef)

Repeal the paragraph.

46  Paragraph 100(2)(ea)

Omit “, (d)”.

46A  Paragraph 100(2)(ec)

Repeal the paragraph, substitute:

 (ec) in relation to all named person warrants issued during that year:

 (i) the total number of telecommunications services intercepted under those of the warrants that did not authorise the interception of communications made by means of a telecommunications device or telecommunications devices identified in the warrant; and

 (ii) the total number of telecommunications services intercepted under those of the warrants that did authorise the interception of communications made by means of a telecommunications device or telecommunications devices identified in the warrant; and

 (iii) the total number of telecommunications devices by means of which communications were intercepted under those of the warrants that did authorise the interception of communications made by means of a telecommunications device or telecommunications devices identified in the warrant; and

47  Paragraph 100(2)(ee)

Repeal the paragraph.

48  Paragraph 100(2)(ef)

Repeal the paragraph.

 

 

[Minister’s second reading speech made in—

House of Representatives on 20 February 2008

Senate on 13 March 2008]

(35/08)

 

Overview

The Telecommunications (Interception and Access) Amendment Act 2008 was enacted to amend the Telecommunications (Interception and Access) Act 1979, addressing gaps in the existing framework for intercepting telecommunications, particularly in relation to the specificity of devices and services targeted for interception. The Parliament of Australia enacted this legislation to ensure that the interception of telecommunications is conducted with adequate clarity and precision, thereby enhancing the oversight and accountability of such activities. The Act includes provisions that mandate more detailed descriptions of the telecommunications devices and services to be intercepted, ensuring that warrants are as specific as possible. The objective is to strike a balance between the need for effective law enforcement and the protection of individual privacy rights. The Act was assented to on 26 May 2008, with various provisions commencing on different dates, as outlined in the commencement table within the Act. The detailed amendments to the 1979 Act are set out in Schedule 1, which includes changes such as the insertion of terms like "telecommunications devices" and the introduction of new subsections to clarify the requirements for warrants and reporting. This amendment aims to refine the legal framework surrounding telecommunications interception, ensuring that it remains robust and relevant in the face of evolving communication technologies.

Scope and Application

The Telecommunications (Interception and Access) Amendment Act 2008 amends the Telecommunications (Interception and Access) Act 1979 to introduce various changes to the interception and access provisions in the telecommunications sector. This Act applies to authorised agencies, telecommunications services, telecommunications devices, and communications made through these devices across the Commonwealth of Australia. The amendments cover both the process of obtaining warrants for interception and the reporting mechanisms for such activities, ensuring that law enforcement agencies can effectively monitor communications while safeguarding privacy rights. The Act also specifies that certain provisions will cease to have effect by the end of December 2009, ensuring timely updates to the legislative framework. The Act provides for certain exclusions and specifies that state laws can still require certain notifications to relevant state ministers. The application of the Act is extended through subordinate instruments, which may further detail the procedures and requirements for interception and access activities.

Key Provisions

The Telecommunications (Interception and Access) Amendment Act 2008 amends the Telecommunications (Interception and Access) Act 1979, introducing several changes to the legal framework governing telecommunications interception. The primary amendments pertain to the specificity of warrants and the reporting requirements for intercepted communications. For example, sections 3 to 19 of Schedule 1 (commencing on 27 May 2008) revise the warrant requirements, mandating that warrants must specify particular telecommunications devices or services, enhancing the precision and transparency of surveillance activities. Additionally, sections 20 to 34 (commencing on 1 July 2008) address reporting obligations, requiring detailed reports on intercepted telecommunications services and devices, as well as on warrants issued to state agencies. The Act imposes several obligations on the parties involved, including the Director-General of Security, the Minister, and state agencies. For instance, the Director-General must ensure that warrants include sufficient details to identify specific telecommunications devices or services (sections 6 and 11 of Schedule 1). The Minister is required to be satisfied that a state has entered into an agreement to cover warrant-related expenses before making a declaration concerning an eligible state authority (section 35 of Schedule 1). Furthermore, state agencies must comply with specific notification requirements, such as providing copies of warrants and revocation instruments to relevant ministers and the Secretary of the Department (sections 59A and 60 of Schedule 1). The Act also delineates penalties and consequences for non-compliance. Although the Act itself does not explicitly state penalties, breaches of the amended provisions could potentially lead to legal actions under the original Telecommunications (Interception and Access) Act 1979. This could include fines, imprisonment, or other civil or criminal penalties, depending on the nature and severity of the breach. The precise penalties would be determined by the courts, taking into account the specific circumstances of each case. Additionally, failure to adhere to the reporting and notification requirements could result in administrative sanctions, including the revocation of warrants or the suspension of interception activities.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.