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) Determination 2015

Introduction
 

Purpose

1. Chapter 4 of the Telecommunications (Interception and Access) Act 1979 permits the disclosure of telecommunications information or documents to criminal law-enforcement agencies and enforcement agencies for limited purposes.

2.                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’).

3.                The Act also permits the Australian Federal Police (AFP) to authorise the disclosure of information or documents on behalf of foreign law enforcement agencies where that disclosure is reasonably necessary for the enforcement of a criminal law of a foreign country. The AFP may authorise disclosures for either existing or prospective information and further authorise the disclosure of the obtained information to the requesting foreign law enforcement agency.

4.                Section 183 of the Act provides that the Communications Access Co-ordinator (the Coordinator), a statutory position within the Attorney-General’s Department may, by legislative instrument, determine requirements for the form of these authorisations, notifications of authorisations, revocations of authorisations and notifications of revocations.

5.                The Principal Determination revokes the earlier Telecommunications (Interception and Access) (Requirements for Authorisations, Notifications and Revocations) Amendment Determination 2012 (2012 Determination). 

6.                The Principal Determination replicates the 2012 Determination with the exception of amendments which reflect changes to the Act as a result of the passage of the Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015 (the Data Retention Act).

7.                The Principal Determination does not prescribe form requirements for data authorisations made to locate missing persons for the purposes of section 178A of the Act. Agencies have indicated that this additional flexibility is necessary in light of the time-sensitive nature of these investigations.  Data authorisations for the purposes of a missing persons investigation are intended to provide assistance to individuals, and are distinguishable from law enforcement investigations where data authorisations are used as a covert investigative tool.

Operation

8.                The Principal Determination is necessary to:

1. reflect amendments to section 180F of the Act requiring that authorised officers be reasonably satisfied that any interference with the privacy is justifiable and proportionate
2. reflect the introduction of journalist information warrants, and
3. ensure consistency between the Principal Determination and the Act.

Financial Impact Statement

9.                The Principal Determination does not have a financial impact.

Consultation

10.            Subsection 183(3) of the Act provides that the Coordinator must consult with the Australian Communications and Media Authority and the Information Commissioner in relation to privacy functions before making a determination under subsection 183(2). The Coordinator consulted with those two agencies and has taken their comments into account prior to making the Principal Determination.

11.            The Determination is a legislative instrument for the purposes of the Legislative Instrument Act 2003.

12.            The Determination commences on 13 October 2015.

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

13.  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 Legislative Instrument

14.            The Principal Determination reflects amendments to the Act as a result of the Data Retention Act, particularly the introduction of Journalist Information Warrants and amendments to section 180F of the Act.

Journalist Information Warrants

15.            The Act enables the Australian Security Intelligence Organisation (ASIO) to access telecommunications data for the performance of its functions.  Similarly it enables enforcement agencies to access telecommunications data for the purposes of enforcing the criminal law, enforcing a pecuniary penalty or protecting public revenue. The Australian Federal Police and the police force of a State or Territory may also access telecommunications data for the purposes of locating a missing person.

16.            The Act prohibits ASIO and enforcement agencies from authorising access to telecommunications data relating to a journalist or their employer where a purpose of making the authorisation is to identifying a journalist’s source, unless a warrant has been obtained (a Journalist Information Warrant).
 

17.            The Principal Determination establishes the form requirements for authorisations made under a Journalist Information Warrant.

Consideration of interference with privacy

18.            Previously, section 180F of the TIA Act required authorised officers to ‘have regard to’ the impact on an individual’s privacy before authorising a service provider to disclose telecommunications data. 

19.            The Act increases this obligation to require authorising officers to be ‘satisfied on reasonable grounds’ that a proposed disclosure or use of telecommunications data is justifiable and proportionate to the interference with the privacy of any person or persons that may result from the disclosure or use of the data.  Authorising officers are also required to consider a number of additional factors before making an authorisation including, the gravity of the conduct being investigated, the reason why the disclosure is proposed to be authorised and the likely relevance and usefulness of the information to the investigation. 

Human rights implications

20.            The Principal Determination engages the following rights:

• the right to protection against arbitrary and unlawful interferences with privacy in Article 17 of the International Covenant on Civil and Political Rights (ICCPR), and

• the right to freedom of expression in Article 19(2) and 19(3) of the ICCPR.

Article 17 of the ICCPR – right to protection against arbitrary and unlawful interferences with privacy

21.            Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence and that everyone has the right to the protection of the law against such interference or attacks. Interference with privacy is not arbitrary if it is in accordance with the provisions, aims and objectives of the ICCPR and is reasonable in the particular circumstances. Reasonableness, in this context, incorporates notions of proportionality to the end sought and necessity in the circumstances.
 

22.            Sections 180G and 180H of the Act prohibit ASIO and enforcement agencies from making historical or prospective authorisations to access journalists’ or their employers’ data for the purpose of identifying a source unless a Journalist Information Warrant is in force. The regime requires that Minister or issuing authority be satisfied that the public interest in accessing telecommunications data for the purpose of identifying a journalist’s source as part of a specific investigation outweighs the public interest in protecting the confidentiality of the identity of the source before a warrant may be issued, and accordingly provides assurance that competing public interests have been considered and appropriately weighed.

23.            The Act also requires an authorised officer to be satisfied on reasonable grounds that any interference with the privacy of any person or persons that may result from the disclosure or use is justifiable and proportionate. This consideration of privacy avoids arbitrary or unlawful interference with individual privacy, as authorised officers must consider whether the interference with privacy is proportionate in light of the gravity of the alleged conduct and the likely usefulness of the telecommunications data to the investigation.

24.            The Principal Determination sets out form requirements for authorisations, notifications and revocations made under a Journalist Information Warrant. It also requires authorised officers to state that they are satisfied that the elements in section 180F have been met in every authorisation and notification of authorisation that is issued. This ensures that the consideration of privacy is a central element of the authorisation-making process.

Article 19(2) and 19(3) of the ICCPR – freedom of expression

25.            Article 19(2) of the ICCPR provides that everyone shall have the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds. However, the right to freedom of expression carries special duties and responsibilities and may be subject to certain restrictions, but these shall only be such as are provided for by law and are necessary for specified purposes including the protection of national security or public order. The protection of public order includes law enforcement.

26.            The Journalist Information Warrant regime seeks to promote the protection of freedom of expression by requiring security and law enforcement agencies to apply for a warrant before accessing a journalists’ or their employers’ telecommunications data where a purpose is to identify a source. 

27.            A journalist’s right to protect confidential information is derived from the right to freedom of expression and is a fundamental tenet of an open and unimpeded press. Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest.

28.            The robust oversight of authorisation requests protects against access to source information occurring in a way which is inconsistent with the assurances of confidentiality that may be given by a journalist to a source; save where the public interest outweighs the maintenance of confidentiality.

29.            The requirement to obtain a warrant from a judicial officer or AAT member in order to authorise access to a journalist’s data to identify a source, minimises the risk that sources will be deterred from actively assisting the press to inform the public on matters of public interest.  It ensures that the freedom of the press is not adversely affected by the measure.

30.            The Principal Determination requires authorised officers issuing authorisations and notifications of authorisations to indicate whether the authorisation was issued under a Journalist Information Warrant. Authorised officers must indicate the duration of the Journalist Information Warrant to ensure that the authorisation itself has been made lawfully. By requiring this information to be included in authorisations, it assists the Inspector-General of Intelligence and Security, or the Commonwealth Ombudsman to ensure that agencies have complied with their legal obligations. This encourages public confidence in transparency of the warrant regime and the functioning of the Act more broadly. 

Conclusion

31.            The legislative instrument is compatible with human rights given it promotes the protection of human rights, specifically the rights to privacy and freedom of expression. To the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.

Section 1 – Name of Determination

32.            This section provides that the name of the Determination is the Telecommunications (Interception and Access) Requirements for Authorisations, Notifications and Revocations) Determination 2015 (the Principal Determination).

Section 1A – Revocation of Telecommunications (Interception and Access) Requirements for Authorisations, Notifications and Revocations) Amendment Determination 2012

33.            This section revokes Telecommunications (Interception and Access) Requirements for Authorisations, Notifications and Revocations) Determination 2012 (the 2012 Determination) in its entirety.

Section 2 – Commencement

34.            This section provides that the Determination commences on 13 October 2015.

Section 3 – Definitions

35.            This section provides that a reference to ‘the Act’ in the Replacement Determination refers to the Telecommunications (Interception and Access) Act 1979 (‘the Act’). Note 1 lists key terms in the Principal Determination as defined under subsection 5(1) of the Act. Note 2 refers to the definition of ‘eligible person’ in subsection 175(2) of the Act.

Section 4 – Consultation

36.            Subsection 183(3) of the Act requires the Communications Access Co-ordinator to consult with the Australian Communications 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.

37.            The Coordinator has consulted with these agencies and taken their comments into account prior to making the Replacement Determination.

Section 5 – Requirements relating to authorisations, notifications and revocations

38.            This section states that Schedule 1 of the Principal Determination sets out the requirements relating to an authorisation made under Division 3, 4 or 4A of Part 4-1 of Chapter 4 of the Act, in relation to the notification of an authorisation, the revocation of an authorisation and the notification of a revocation.

Schedule 1 – Requirements relating to authorisations, notifications and revocations

Part 1 – Authorisations made by the Organisation

Clause 1.01 – Authorisation for access to existing information or documents

39.            Subclause 1.01(1) specifies information that must be included in an authorisation made by the Organisation for access to existing information or documents under subsection 175(2) of the Act. This subclause replicates the 2012 Determination.

40.            Subclause 1.01(2) replicates the 2012 Determination and provides that an authorisation, whether in written or electronic form, must be signed by its maker.

Clause 1.02 – Authorisation for access to prospective information or documents

41.            Subclause 1.02(1) specifies information that must be included in an authorisation made by the Organisation for access to prospective information or documents under subsections 176(2) and 176(3) of the Act.

42.            The table in this subclause replicates the 2012 Determination with the exception of item 7. Item 7 states that an authorisation must state the date on which it was made and the date on which it is to end. It has been amended by including reference to the cessation date for a Journalist Information Warrant, being a date that does not go beyond the period for which the Journalist Information Warrant was specified to be in force in accordance with section 180N of the Act.

43.            The note for item 7 of the table has been amended to include additional information about the duration of warrants referred to in item 7. Under paragraph 176(5)(b) of the Act, an authorisation for prospective information or documents must end no later than the end of the period of 90 days beginning on the day the authorisation is made; and if the authorisation is made under a Journalist Information Warrant, no later than the end of the period specified in section 180N. Section 180N of the Act provides that the duration of a Journalist Information Warrant issued under section 180L must not exceed 6 months.

44.            Subclause 1.01(2) replicates the 2012 Determination and provides that an authorisation, whether in written or electronic form, must be signed by its maker.  

Part 2 – Authorisations made by enforcement agencies

Clause 2.01 – Authorisation for access to existing information or documents

45.            Subclause 2.01(1) specifies information that must be included in an authorisation made by enforcement agencies for access to existing information or documents under subsections 178(2) and 179(2) of the Act.

46.            This subclause replicates the 2012 Determination, with the exception of the privacy test set out in item 9 of the table. The amendments to item 9 reflect the changes to section 180F of the Act by omitting the requirement that an officer authorising the disclosure ‘have regard to whether any interference with the privacy of any person or persons that may result from the disclosure or use is justifiable’ and inserting a requirement that the authorised officer ‘be satisfied on reasonable grounds that any interference with the privacy of any person or persons that may result from the disclosure or use is justifiable and proportionate’.

47.            Sub-item 9(a) also inserts the additional requirement that the authorised officer must have regard to the gravity of any conduct in relation to which the authorisation is sought. In doing so, the authorised officer must have regard to the seriousness of any offence, pecuniary penalty and protection of the public revenue for which the authorisation is sought.

48.            The note states that for the purposes of item 9, section 180F of the Act sets out the privacy matters that an authorising officer is required to consider prior to making each authorisation.

49.            Subclause 2.01(2) replicates the 2012 Determination and provides that an authorisation, whether in written or electronic form, must be signed by its maker.

Clause 2.01A - Authorisations for access to existing information or documents by the Australian Federal Police – enforcement of the criminal law of a foreign country

Subclause 2.01A(1)

50.            Subclause 2.01A(1) specifies information that must be included in an authorisation made by the AFP for access to existing information or documents for the purposes of enforcing the criminal law of a foreign country under subsection 180A(2) of the Act.

51.            This subclause replicates the 2012 Determination with the exception of the privacy test set out in item 7 of the table. The amendments to item 7 reflect the changes to section 180F of the Act by omitting the requirement that an officer authorising the disclosure ‘have regard to whether any interference with the privacy of any person or persons that may result from the disclosure or use is justifiable’ and inserting a requirement that the authorised officer of the AFP ‘be satisfied on reasonable grounds that any interference with the privacy of any person or persons that may result from the disclosure or use is justifiable and proportionate’.

52.            Sub-item 7(a) also inserts the additional requirement that the authorised officer must have regard to the gravity of any conduct in relation to which the authorisation is sought. In doing so, the authorised officer of the AFP must have regard to the seriousness of the offence for which the authorisation is sought.

53.            The note states that for the purposes of item 7, section 180F of the Act sets out the privacy matters that an authorising officer is required to consider prior to making each authorisation.

Subclause 2.01A(2)

54.            Subsection 180A(4) of the Act enables an authorised officer of the AFP to authorise the disclosure of information or documents obtained under subsection 180A(2) to a foreign law enforcement agency. Subclause 2.01A(2) prescribes the information that must be included when authorising such a disclosure.

55.            The items in the table largely replicate the 2012 Determination with the exception of  item 4 which has been amended by omitting ‘for whom the disclosure is requested’ and inserting ‘to which the disclosure is to be made.’

56.            Item 7 has been amended by omitting the requirement that an authorised officer of the AFP authorising the disclosure ‘have regard to whether any interference with the privacy of any person or persons that may result from the disclosure or use is justifiable’ and inserting a requirement that the authorised officer ‘be satisfied on reasonable grounds that any interference with the privacy of any person or persons that may result from the disclosure or use is justifiable and proportionate’. This reflects the authorised officer of the AFP’s obligation to consider the impact on an individuals’ privacy pursuant to section 180F of the Act.

57.            Sub-item 7(a) also inserts the additional requirement that the authorised officer must have regard to the gravity of any conduct in relation to which the authorisation is sought. In doing so, they must have regard to the seriousness of any offence for which the authorisation is sought.

58.            The note states that for the purposes of item 7, section 180F of the Act sets out the privacy matters that an authorising officer is required to consider prior to making each authorisation.

59.            Item 9 has been amended to omit the requirement that an authorised officer ‘has had regard to the circumstances in which the disclosure was requested’ and inserted a requirement that ‘the authorised officer is satisfied that the disclosure is reasonably necessary for the enforcement of a criminal law of a foreign country and the disclosure is appropriate in all the circumstances.’

60.            Subclause 2.01A(3) replicates the 2012 Determination and provides that an authorisation, whether in written or electronic form, must be signed by its maker.

Clause 2.02 – Authorisation for access to prospective information or documents by criminal law-enforcement agencies

61.            Subclause 2.02(1) prescribes information that must be included in an authorisation made by a criminal law-enforcement agency for access to prospective information or documents under subsections 180(2) and 180(3) of the Act.

62.            Item 9 has been amended to reflect the changes to section 180F of the Act by omitting the requirement that an officer authorising the disclosure ‘have regard to whether any interference with the privacy of any person or persons that may result from the disclosure or use is justifiable’ and inserting a requirement that they ‘be satisfied on reasonable grounds that any interference with the privacy of any person or persons that may result from the disclosure or use is justifiable and proportionate’.

63.            Sub-item 9(a) also inserts the requirement that the authorised officer must have regard to the gravity of any conduct in relation to which the authorisation is sought. In doing so, the officer must have regard to the seriousness of any offence, for which the authorisation is sought.

64.            The note states that for the purposes of item 9, section 180F of the Act sets out the privacy matters that an authorising officer is required to consider prior to making each authorisation.

65.            Item 10 of the table provides that an authorisation must state the date on which it was made and the date on which it is to end. It has been amended by inserting ‘that where an authorisation is made under a Journalist Information Warrant, the specified date must be no later than the end of the period of 90 days beginning on the day the warrant was issued.’

66.            The note for item 10 of the table has been amended to include additional information about the date range referred to in item 10. Under paragraph 180(6)(b) of the Act, an authorisation for prospective information or documents must end no later than the end of the period of 45 days beginning on the day the authorisation is made; and if the authorisation is made under a Journalist Information Warrant, a period of up to 90 days in accordance with subsection 180U(3) of the Act.

67.            Subclause 2.02(2) replicates the 2012 Determination and provides that an authorisation, whether in written or electronic form, must be signed by its maker.

Clause 2.03 – Authorisations for access to prospective information or documents by the Australian Federal Police – enforcement of the criminal law of a foreign country

Subclause 2.03(1)

68.            Subclause 2.03(1) prescribes the information that must be included in an authorisation made by the AFP for access to prospective information or documents for the purposes of enforcing the criminal law of a foreign country under subsection 180B(2) of the Act.

69.            This subclause replicates the 2012 Determination with the exception of amendments to items 7 and 10 of the table.

70.            The amendments to item 7 reflect the changes to section 180F of the Act by omitting the requirement that an officer authorising the disclosure ‘have regard to whether any interference with the privacy of any person or persons that may result from the disclosure or use is justifiable’ and inserting a requirement that the authorised officer ‘be satisfied on reasonable grounds that any interference with the privacy of any person or persons that may result from the disclosure or use is justifiable and proportionate’.

71.            Sub-item 7(a) also inserts the additional requirement that the authorised officer must have regard to the gravity of any conduct in relation to which the authorisation is sought. In doing so, the authorised officer must consider the seriousness of any offence for which the authorisation is sought.

72.            The note states that for the purposes of item 7, section 180F of the Act sets out the privacy matters that an authorising officer is required to consider prior to making each authorisation.

73.            Item 10 has been amended by omitting the requirement that the authorised officer ‘has had regard to the circumstances in which the disclosure is requested.’ Item 10 now requires the authorised officer to include a statement in the authorisation that they are satisfied that the disclosure is satisfied in all the circumstances.

Subclause 2.03(2)—Extension of an authorisation to disclose prospective information or documents

74.            Subclause 2.03(2) prescribes the information that must be included in an extension of an authorisation made by the AFP made under subsection 180B(6) of the Act for access to prospective information or documents for the purposes of enforcing the criminal law of a foreign country.

75.            This subclause replicates the 2012 Determination with the exception of amendments to items 6 and 8 of the table.

76.            The amendments to item 6 reflect the changes to section 180F of the Act by omitting the requirement that an officer authorising the disclosure ‘have regard to whether any interference with the privacy of any person or persons that may result from the disclosure or use is justifiable’ and inserting a requirement that the authorised officer ‘be satisfied on reasonable grounds that any interference with the privacy of any person or persons that may result from the disclosure or use is justifiable and proportionate’.

77.            Sub-item 6(a) also inserts the additional requirement that the authorised officer must have regard to the gravity of any conduct in relation to which the authorisation is sought. In doing so, the authorised officer must have regard to the seriousness of any offence for which the authorisation is sought.

78.            The extension of an authorisation to disclose prospective information or documents may have a larger impact upon individual privacy than what was originally considered under the initial authorisation made under section 180B(2) of the Act. In light of this, it was considered appropriate to require the authorised officer to assess an extension of an authorisation according to the privacy considerations listed in section180F. 

79.            The note states that for the purposes of item 6, section 180F of the Act sets out the privacy matters that an authorising officer is required to consider prior to making each authorisation.

Subclause  2.03(3)—Disclosure to a foreign law enforcement agency

80.            Section 180B(8) of the Act enables an authorised officer to authorise the disclosure of prospective information or documents obtained under subsection 180B(2) to a foreign law enforcement agency. Subclause 2.03(3) specifies information that must be included when authorising such a disclosure.

81.            This subclause replicates the 2012 Determination with the exception of amendments to items 8 and 11 of the table.

82.            The amendments to item 8 reflect the changes to section 180F of the Act by omitting the requirement that an officer authorising the disclosure ‘have regard to whether any interference with the privacy of any person or persons that may result from the disclosure or use is justifiable’ and inserting a requirement that they ‘be satisfied on reasonable grounds that any interference with the privacy of any person or persons that may result from the disclosure or use is justifiable and proportionate’.

83.            Sub-item 8(a) also inserts the additional requirement that the authorised officer must have regard to the gravity of any conduct in relation to which the authorisation is sought. In doing so, the authorised officer must have regard to the seriousness of any offence for which the authorisation is sought.

84.            The note states that for the purposes of item 8, section 180F of the Act sets out the privacy matters that an authorising officer is required to consider prior to making each authorisation.

85.            Item 11 has been amended by omitting the requirement that the authorised officer ‘has had regard to the circumstances in which the disclosure is requested.’ Item 11 now requires the authorised officer to include a statement in the authorisation that they are satisfied that the disclosure is satisfied in all the circumstances.  

86.            Subclause 2.03(4) replicates the 2012 Determination and provides that an authorisation, whether in written or electronic form, must be signed by its maker.

Clause 2.04 - Secondary disclosure authorisations for the Australian Federal Police to disclose information or documents – enforcement of the criminal law of a foreign country

87.            Subclause 2.04(1) specifies information that must be included in an authorisation made by the AFP for secondary disclosure of information or documents for the purposes of enforcing the criminal law of a foreign country under subsection 180C of the Act.

88.            This subclause replicates the 2012 Determination with the exception of amendments to items 8 and 11 of the table.

89.            The amendments to item 8 reflect the changes to section 180F of the Act by omitting the requirement that an officer authorising the disclosure ‘have regard to whether any interference with the privacy of any person or persons that may result from the disclosure or use is justifiable’ and inserting a requirement that the authorised officer ‘be satisfied on reasonable grounds that any interference with the privacy of any person or persons that may result from the disclosure or use is justifiable and proportionate’.

90.            Sub-item 8(a) also inserts the additional requirement that the authorised officer must have regard to the gravity of any conduct in relation to which the authorisation is sought. In doing so, they must have regard to the seriousness of any offence for which the authorisation is sought.

91.            The note states that for the purposes of item 8, section 180F of the Act sets out the privacy matters that an authorising officer is required to consider prior to making each authorisation.

92.            Subclause 2.04(2) replicates the 2012 Determination and provides that an authorisation, whether in written or electronic form, must be signed by its maker.

Clause 2.05 - Secondary disclosure authorisations for the Australian Federal Police to disclose information or documents – enforcement of the criminal law

93.            Subclause 2.05(1) specifies information that must be included in an authorisation made by the AFP for secondary disclosure of information or documents for the purposes of enforcing the criminal law under subsection 180D of the Act.

94.            The heading of clause 2.05 has been revised by omitting ‘enforcement of the laws of Australia’ and inserting ‘enforcement of the criminal law’ in order to reflect the wording of the Act.

95.            This subclause replicates the 2012 Determination with the exception of amendments to items 10 and 11 of the table.

96.            The amendments to item 10 reflect the changes to section 180F of the Act by omitting the requirement that an officer authorising the disclosure ‘have regard to whether any interference with the privacy of any person or persons that may result from the disclosure or use is justifiable’ and inserting a requirement that the authorised officer ‘be satisfied on reasonable grounds that any interference with the privacy of any person or persons that may result from the disclosure or use is justifiable and proportionate’.

97.            Sub-item 10(a) also inserts the additional requirement that the authorised officer must have regard to the gravity of any conduct in relation to which the authorisation is sought. In doing so, they must have regard to the seriousness of any offence, pecuniary penalty and protection of the public revenue for which the authorisation is sought.

98.            The note states that for the purposes of item 10, section 180F of the Act sets out the privacy matters that an authorising officer is required to consider prior to making each authorisation.

99.            Item 11 has been amended by omitting the requirement that the authorised officer ‘has had regard to the circumstances in which the disclosure is requested.’ Item 11 now requires the authorised officer to include a statement in the authorisation that they are satisfied that the disclosure is satisfied in all the circumstances, reflecting the wording of the Act.

100.        Subclause 2.05(2) replicates the 2012 Determination and provides that an authorisation, whether in written or electronic form, must be signed by its maker.

Part 3 – Notification of Authorisations

Clause 3.01 – Notification of an authorisation made by the Organisation

101.          Subclause 3.01(1) specifies information that must be included in a notification of an authorisation made by the Organisation made under Division 3 of Part 4-1 of the Act. Section 184 of the Act provides the requirements for notification of authorisations and revocations.

102.          This subclause replicates the 2012 Determination with the exception of amendments to items 1 and 3 of the table.

103.          Item 1 omits ‘officer or employee of the Organisation’ and inserts ‘ASIO employee or ASIO affiliate’ to ensure consistency with the definitions in subsection 5(1) of the Act.

104.          Item 3 states that the notification of an authorisation must either include a copy of the authorisation or a statement which lists specific criteria. Subparagraph 3(b)(viii) requires the statement to include the date on which the authorisation is to end. Subparagraph 3(b)(viii) has been amended by inserting ‘if the authorisation is made under a Journalist Information Warrant – being a date that is no later than the end of the period for which the Journalist Information Warrant was specified to be in force.’

105.          The note specifies that where a notification attaches a copy of the authorisation, it does not need to contain any of the further information required by subitem 3(b). The note also states that a Journalist Information Warrant issued under section 180L of the Act must not remain in force for a period exceeding 6 months in accordance with section 180N of the Act.

106.          Subclause 3.01(2) replicates the 2012 Determination and provides that the notification of an authorisation must be signed by its maker if it is in a written form or state a unique identifier of the Organisation if it is in electronic form.

Clause 3.02 – Notification of an authorisation made by an enforcement agency

107.          Subclause 3.02(1) specifies information that must be included in a notification of an authorisation made by an enforcement agency under Division 4 of Part 4-1 of the Act. Section 184 of the Act provides the requirements for notification of authorisations and revocations.

108.          This subclause replicates the 2012 Determination with the exception of amendments to item 3 of the table. Subparagraphs 3(b)(ix) and 3(c)(ix) have been amended to reflect the changes to section 180F of the Act by omitting the requirement that an officer authorising the disclosure ‘have regard to whether any interference with the privacy of any person or persons that may result from the disclosure or use is justifiable having regard to the following matters’ and inserting a requirement that the authorised officer ‘be satisfied on reasonable grounds that any interference with the privacy of any person or persons that may result from the disclosure or use is justifiable and proportionate, having regard to the matters listed in item 3A of this table’.

109.          Item 3A  lists the matters which an authorised officer must have regard to when authorising a disclosure. The matters in item 3A have been separated from subparagraphs 3(b)(ix) and 3(c)(ix) to comply with current drafting practices. Item 3A inserts the additional requirement that the authorised officer must have regard to the gravity of any conduct in relation to which the authorisation is sought. In doing so, they must have regard to the seriousness of any offence, pecuniary penalty and protection of the public revenue for which the authorisation is sought, and whether the authorisation is sought for the purposes of finding a missing person.

110.          The note states that for the purposes of item 3A, section 180F of the Act sets out the privacy matters that an authorising officer is required to consider prior to making each authorisation.

111.          Subparagraph 3(c)(x) requires the statement to include the date on which the authorisation was made and the date on which it is to end. This subparagraph has been amended by inserting ‘and if the authorisation is made under a journalist information warrant – being a date that is no later than the end of the period of 90 days beginning on the day the authorisation was made’.

112.          The note specifies that where a notification attaches a copy of the authorisation, it does not need to contain any of the further information required by sub-items 3(b) or 3(c). It also states that Section 180F of the Act sets out the privacy matters that an authorising officer is required to consider prior to making each authorisation.

113.          Subclause 3.02(2) replicates the 2012 Determination and provides that the notification of an authorisation must be signed by its maker if it is in a written form or state a unique identifier of the enforcement agency if it is in electronic form.

Clause 3.03 - Notification of an authorisation made by the Australian Federal Police – enforcement of the criminal law of a foreign country

114.          Subclause 3.03(1) specifies information that must be included in a notification of an authorisation made by the AFP made under Division 4A of Part 4-1 of the Act for the purposes of enforcing the criminal law of a foreign country. Section 184 of the Act provides the requirements for notification of authorisations and revocations.

115.          Paragraph 3(b) provides the requirements for authorisations made by the AFP for access to existing information or documents for the purpose of enforcing the criminal law of a foreign country made under section 180A(2) of the Act. Paragraph 3(c) provides the requirements for authorisations made by the AFP for access to prospective information or documents for the purpose of enforcing the criminal law of a foreign country made under section 180B(2) of the Act. Paragraph 3(d) provides the requirements for extensions of prospective authorisations made by the AFP under section 180B(6) of the Act.

116.          Subparagraphs 3(b)(vii), 3(c)(vii) and 3(d)(vi) have been amended to reflect the changes to section 180F of the Act. They have been amended by omitting the requirement that an officer authorising the disclosure ‘have regard to whether any interference with the privacy of any person or persons that may result from the disclosure or use is justifiable having regard to the following matters’ and inserting a requirement that they ‘be satisfied on reasonable grounds that any interference with the privacy of any person or persons that may result from the disclosure or use is justifiable and proportionate, having regard to the matters listed in item 3A of this table’.

117.          Item 3A has been lists the matters which an authorised officer must have regard to when authorising a disclosure. The matters in item 3A have been separated from subparagraphs 3(b)(vii), 3(c)(vii) and 3(d)(vi) to comply with current drafting practices. Item 3A inserts the additional requirement that the authorised officer must have regard to the gravity of any conduct in relation to which the authorisation is sought. In doing so, they must have regard to the seriousness of any offence, pecuniary penalty and protection of the public revenue for which the authorisation is sought, and whether the authorisation is sought for the purposes of finding a missing person.

118.          The note states that for the purposes of item 3A, section 180F of the Act sets out the privacy matters that an authorising officer is required to consider prior to making each authorisation.

119.          Subparagraph 3(c)(x) and 3(d)(viii) has been amended to omit the requirement that an authorised officer ‘has had regard to the circumstances in which the disclosure was requested’ and inserted a requirement that ‘the authorised officer is satisfied that the disclosure is appropriate in all the circumstances.’

120.          Subclause 3.03(2) replicates the 2012 Determination and provides that the notification of an authorisation must be signed by its maker if it is in a written form or state a unique identifier of AFP if it is in electronic form.

Clause 4.01 – Revocation of an authorisation made by the Organisation

121.          Subclause 4.01(1) specifies information that must be included in a revocation of an authorisation made by the Organisation under section 176(6) of the Act.

122.          This subclause replicates the 2012 Determination with the exception of item 5 of the table, which requires the Organisation to include in the revocation a statement that the eligible person is satisfied that the disclosure of information or documents is no longer required. Item 5 has been amended by inserting ‘or where a Journalist Information Warrant, under which the authorisation was issued, has been revoked.’ This amendment reflects the introduction of sections 180N and 180P into the Act due to the creation of the Journalist Information Warrant regime.

123.          The note states that for item 5 of the table, the conditions for revocation of a journalist information warrant by the Organisation are set out in sections 180N or 180P of the Act. Section 180N provides that in relation to Journalist Information Warrants issued to the Organisation, the Minister may revoke the warrant at any time before the end of the specified period. Section 180P provides that, where the Director-General of Security is satisfied that the grounds on which the journalist information warrant was issued have ceased to exist, they must inform the Minister accordingly and take necessary steps to discontinue the making of authorisations under the relevant Journalist Information Warrant.

124.          Subclause 4.01(2) replicates the 2012 Determination and provides that a revocation, whether in written or electronic form, must be signed by its maker.

Clause 4.02 – Revocation of an authorisation made by a criminal law-enforcement agency

125.          Subclause 4.02(1) specifies information that must be included in a revocation of an authorisation made by a criminal law-enforcement agency under section 180(7) of the Act.

126.          This subclause replicates the 2012 Determination with the exception of item 7 of the table, which requires the Organisation to include in the revocation a statement that the eligible person is satisfied that the disclosure of information or documents is no longer required. Item 7 has been amended by inserting ‘or where a journalist information warrant, under which the authorisation was issued, has been revoked.’ This amendment reflects the introduction of section 180W into the Act due to the creation of the Journalist Information Warrant regime.

127.          The note states that for item 7, the conditions for revocation of a journalist information warrant by a chief officer of an enforcement agency are set out in section 180W of the Act.

128.          Subclause 4.02(2) replicates the 2012 Determination and provides that a revocation, whether in written or electronic form, must be signed by its maker.

Clause 4.03 - Revocation of an authorisation made by the Australian Federal Police – enforcement of the criminal law of a foreign country

129.          Subclause 4.03(1) specifies information that must be included in a revocation of an authorisation made by the AFP in relation to the enforcement of the criminal law of a foreign country under section 180B(4) of the Act. This subclause is replicates the 2012 Determination.

130.          Subclause 4.03(2) replicates the 2012 Determination and provides that a revocation, whether in written or electronic form, must be signed by its maker.

Part 5 – Notification of revocations

Clause 5.01 – Notification of a revocation made by the Organisation

131.          Subclause 5.01(1) specifies information that must be included in a notification of a revocation made by the Organisation under section 176(6) of the Act. This subclause replicates the 2012 Determination.

132.          Subclause 5.01(2) replicates the 2012 Determination and provides that a revocation must be signed by its maker if it is in a written form, or state a unique identifier of the Organisation if it is in electronic form.

Clause 5.02 - Notification of a revocation made by a criminal law-enforcement agency

133.          Subclause 5.02(1) specifies information that must be included in a notification of a revocation made by a criminal law-enforcement agency under section 180(7) of the Act. This subclause replicates the 2012 Determination.

134.          Subclause 5.02(2) replicates the 2012 Determination and provides that a revocation must be signed by its maker if it is in a written form or state a unique identifier of the criminal law-enforcement agency if it is in electronic form.

Clause 5.03 - Notification of a revocation made by the Australian Federal Police for the purposes of enforcing the criminal law of a foreign country

135.          Subclause 5.03(1) specifies information that must be included in a notification of a revocation made by the AFP under subsection 180B(4) of the Act. This subclause replicates the 2012 Determination.

136.          Subclause 5.03(2) replicates the 2012 Determination and provides that a revocation must be signed by its maker if it is in a written form, or state a unique identifier of the AFP if it is in electronic form.