EXPLANATORY STATEMENT
Issued by the authority of the Communications Access Co‑ordinator
Telecommunications (Interception and Access) Act 1979
Telecommunications (Interception and Access) (Requirements for Authorisations, Notifications and Revocations) Amendment Determination 2012
Chapter 4 of the Telecommunications (Interception and Access) Act 1979 (the Act) establishes a regime that permits the disclosure of telecommunications information or documents to security and enforcement agencies for limited purposes. The Act permits the Australian Federal Police (the AFP) to authorise the disclosure of information or documents on behalf of a foreign law enforcement agency where that disclosure is reasonably necessary for the enforcement of the criminal law of a foreign country.
The Act distinguishes between information that has already come into existence (‘existing information’ or ‘historical information’) and information that will come into existence during the period that the authorisation is in force (‘prospective information’).[1] The AFP may authorise these disclosures for either existing or prospective information or documents, and further authorise the disclosure of the obtained information to the requesting foreign law enforcement agency.
Section 183 of the Act provides that the Communications Access Co‑ordinator (‘the CAC’), a statutory position within the Attorney‑General’s Department currently filled by the First Assistant Secretary, National Security Law and Policy Division, may, by legislative instrument, determine requirements for the form of these authorisations, notifications of authorisations, revocations of authorisations and notifications of revocations.
The Telecommunications (Interception and Access) (Requirements for Authorisations, Notifications and Revocations) Determination 2012 (the Principal Determination) is the second such determination made by the CAC. The Principal Determination revoked the earlier Telecommunications (Interception and Access) (Requirements for Authorisations, Notifications and Revocations) Determination 2007.
This Telecommunications (Interception and Access) (Requirements for Authorisations, Notifications and Revocations) Amendment Determination 2012 (the Amending Determination) amends the Principal Determination as follows:
- The Amending Determination removes reference to the identification of the original discloser of information in the AFP’s authorisation documents for the subsequent disclosure of this information to foreign law enforcement agencies. Similarly, the Amending Determination removes reference to the identification of the foreign law enforcement agency for whom the AFP requested the disclosure of the information in the AFP’s notification and revocation documentation. As there is no requirement under the Act to identify these entities in the AFP’s documents, the Amending Determination corrects the drafting of the Principal Determination accordingly.
- The Amending Determination provides that notifications of authorisations made by the AFP under clause 3.03 of the Principal Determination are also required to specify the means by which the information or documents should be disclosed to the relevant staff member and the date on which the notification is made. These requirements are already required for the notification of other authorisations provided for in the Principal Determination.
- The Amending Determination further clarifies the forms of authorisations and notifications to which the section 5D definition of ‘serious offence’ relates via amendment to a note in the Principal Determination.
Subsection 183(3) of the Act provides that the CAC must consult with the Australian Communications and Media Authority and the Information Commissioner prior to making a determination under section 183. The CAC has duly consulted with these two agencies and has taken their comments into account prior to making the Amending Determination.
The Determination is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Determination commences on the day after it is registered.
Further details on each of the requirements set out in the Determination are provided in the Attachment.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
This Legislative Instrument 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.
Human rights implications
This Legislative Instrument makes technical corrections and amendments to an existing legislative instrument to improve the ease of the administration of the existing legislative instrument. This Legislative Instrument does not engage any of the applicable rights or freedoms.
Conclusion
This Legislative Instrument is compatible with human rights as it does not raise any human rights issues.
Geoff McDonald, Communications Access Coordinator.
ATTACHMENT
Details of the Telecommunications (Interception and Access) (Requirements for Authorisations, Notifications and Revocations) Amendment Determination 2012
Section 1 – Name of Determination
This section provides that the title of the Determination is the Telecommunications (Interception and Access) (Requirements for Authorisations, Notifications and Revocations) Amendment Determination 2012 (the Amending Determination).
Section 2 – Commencement
This section provides that the Determination commences on the day after it is registered.
Section 3 – Consultation
Under subsection 183(3) of the Telecommunications (Interception and Access) Act 1979 (‘the Act’), the Communications Access Co-ordinator is required to consult with the Australian Communications and Media Authority and the Australian Information Commissioner prior to making a determination regarding the form of authorisations, notifications and revocations under section 183(2) of the Act.
The CAC has duly consulted with these two agencies and has taken their comments into account prior to making the Amending Determination.
Section 4 – Amendment of Telecommunications (Interception and Access) (Requirements for Authorisations, Notifications and Revocations) Determination 2012
This section provides that the Telecommunications (Interception and Access) (Requirements for Authorisations, Notifications and Revocations) Determination 2012 (the Principal Determination) is amended as set out in the Schedule.
Schedule – Amendments
Item [1] – Section 3, note 3
Item 1 amends note 3 under section 3 of the Principal Determination to confirm that the term ‘serious offence’ is defined in section 5D of the Act for the purposes of subsections 180(2), 180(3), 184(3) and 184(5) of the Act in addition to subsections 180B(3), 180B(6) and 180B(8) noted in the Principal Determination.
The amendment confirms that the definition of ‘serious offence’ is applicable to authorisations for prospective information by criminal law-enforcement agencies under subsections 180(2) and 180(3). This definition of ‘serious offence’ also applies to the notification of these authorisations by these criminal law-enforcement agencies under subsection 184(3), and the Australian Federal Police’s (AFP’s) notifications of section 180B authorisations under subsection 184(5).
Item [2] – Part 2
Item 2 amends the information required in authorisations made by the AFP under subsections 180A(4), 180B(8) and 180C(1) of the Act for the disclosure of telecommunications data to foreign law enforcement agencies.
Subsections 180A(4), 180B(8) and 180C(1) of the Act provide that the AFP may authorise the disclosure of information or documents to a foreign law enforcement agency if the requirements for disclosure stipulated within those sections are met.
There is no requirement under the Act to identify the person who originally disclosed the telecommunications information to the AFP in the AFP’s subsequent authorisations for disclosure of telecommunications data to foreign law enforcement agencies.
The Amending Determination corrects the drafting of the Principal Determination for item 4 in the tables under clauses 2.01A(2), 2.03(3) and 2.04(1) in that regard by omitting the reference to identification of the name of the person from whom disclosure was sought under these items.
The AFP is therefore not required to identify the name of the person from whom disclosure of telecommunications information was originally sought in their subsequent authorisation documents for the disclosure of this information to foreign law enforcement agencies. The Principal Determination will continue to require an authorised officer of the AFP to certify that the information or documents being disclosed to the foreign law enforcement agency under subsections 180A(4), 180B(8) or 180C(1) were originally obtained via authorisations made under the provisions of Part 4-1 of the Act. The AFP also identifies the person from whom the disclosure of telecommunications information is originally sought in its authorisations for the disclosure of this information to the AFP under subsections 180A(2) and 180B(2) of the Act for reporting and accountability purposes.
Item [3] – Part 3, clause 3.03, table 3.03(1)
Item 3 amends the information required in the notifications of authorisations made by the AFP under clause 3.03 of the Principal Determination in respect of subitems 3(b)(iv), 3(c)(iv) and 3(d)(iv) in column 2 of table 3.03(1).
Subsection 184(5) of the Act provides that the AFP must notify the person disclosing the information of the AFP’s original authorisation made under 180A(2) or 180B(2), or notify the person of an extension the period for which an authorisation for prospective data is in force under subsection 180B(6).
There is no requirement under the Act to identify the foreign law enforcement agency in the AFP’s original authorisations under these subsections, or in the notification of these authorisations. The AFP currently identifies foreign law enforcement agencies in its authorisations for the ultimate disclosure of telecommunications information to those agencies under subsections 180A(4), 180B(8) and 180C of the Act for reporting and accountability purposes. The omission of the identity of the foreign law enforcement agency in notification documentation also assists in minimising the risk associated with the confidentiality of ongoing investigations.
The Amending Determination corrects the drafting of the Principal Determination for subitems 3(b)(iv), 3(c)(iv) and 3(d)(iv) of table 3.03(1) in that regard by omitting the reference to identification of the foreign law enforcement agency under these subitems in the Principal Determination.
The AFP is therefore not required to identify the foreign law enforcement agency for whom the disclosure is requested in the notification of the authorisation. The AFP will continue to report on the disclosure of telecommunications information to foreign law enforcement agencies in their report to the Minister for each reporting year under subparagraphs 186(1)(ca) and 186(1)(cb) of the Act.
Item [4] – Insertion after Part 3, clause 3.03, table 3.03(1), subitem 3(d)(viii)(B)
Item 4 amends the information required in the notifications of authorisations made by the AFP under clause 3.03 of the Principal Determination after subitem 3(d)(viii)(B).
The Amending Determination provides that notifications of authorisations made by the AFP under clause 3.03 of the Principal Determination are to additionally specify the means by which the information should be disclosed to the relevant staff member and specify the date on which the notification is made.
These requirements are already required for the notification of other authorisations provided for in the Principal Determination, and the Amending Determination corrects the drafting of the Principal Determination in that regard to make these two further requirements uniform across all notifications. Refer to paragraph 30 of the Explanatory Statement to the Principal Determination for further detail in respect of the means by which the information or documents should be disclosed to the relevant staff member
Item [5] – Part 4, clause 4.03, table 4.03(1)
Item 5 amends the information required in revocations made by the AFP under clause 4.03 of the Principal Determination in respect of subitem 4(c) in column 2 of table 4.03(1).
Subsection 180B(4) of the Act requires an authorised officer of the AFP to revoke an authorisation for the disclosure of prospective information on behalf of a foreign law enforcement agency when the authorised officer is satisfied that the disclosure is no longer required.
There is no requirement under the Act to identify the foreign law enforcement agency in the AFP’s revocation. The AFP currently identifies foreign law enforcement agencies in its authorisations for the ultimate disclosure of telecommunications information to those agencies under subsections 180A(4), 180B(8) and 180C of the Act for reporting and accountability purposes. The omission of the identity of the foreign law enforcement agency in revocation documentation also assists in minimising the risk associated with the confidentiality of ongoing investigations.
The Amending Determination corrects the drafting of the Principal Determination for subitem 4(c) of table 4.03(1) in that regard by omitting the reference to identification of the foreign law enforcement agency under this subitem in the Principal Determination.
The AFP is therefore not required to identify the foreign law enforcement agency for whom the disclosure was originally requested in the revocation of the authorisation. The AFP will continue to report on the disclosure of telecommunications information to foreign law enforcement agencies in their report to the Minister for each reporting year under subparagraphs 186(1)(ca) and 186(1)(cb) of the Act.
Item [6] – Part 5, clause 5.03, table 5.03(1)
Item 6 amends the information required in the notifications of revocations made by the AFP under clause 5.03 of the Principal Determination in respect of subitem 3(b)(iv)(C) in column 2 of table 5.03(1).
Subsection 184(6) of the Act provides that where the AFP makes a revocation of an authorisation under subsection 180B(4) of the Act, the AFP must notify the person originally notified of the authorisation of that subsequent revocation made by the AFP.
There is no requirement under the Act to identify the foreign law enforcement agency in the notification of the AFP’s revocation. The AFP currently identifies foreign law enforcement agencies in its authorisations for the ultimate disclosure of telecommunications information to those agencies under subsections 180A(4), 180B(8) and 180C of the Act for reporting and accountability purposes. The omission of the identity of the foreign law enforcement agency in notification documentation also assists in minimising the risk associated with the confidentiality of ongoing investigations.
The Amending Determination corrects the drafting of the Principal Determination for subitem 3(b)(iv)(C) of table 5.03(1) in that regard by omitting the reference to identification of the foreign law enforcement agency under this subitem in the Principal Determination.
The AFP is therefore not required to identify the foreign law enforcement agency for whom the disclosure was originally requested in the notification of the revocation. The AFP will continue to report on the disclosure of telecommunications information to foreign law enforcement agencies in their report to the Minister for each reporting year under subparagraphs 186(1)(ca) and 186(1)(cb) of the Act.
[1] The Act uses the term ‘information or documents’ to cover both forms of data. However, there is generally no practical distinction between the two – agencies will often not distinguish whether they are requesting information or documents as they cannot determine ahead of time what format the requested data will be in. For ease of reference, this document will refer only to ‘information’ rather than to ‘information or documents’.