2013-2014-2015 The Parliament of the Commonwealth of Australia HOUSE OF REPRESENTATIVES As passed by both Houses Telecommunications Interception and Access Amendment Data Retention Bill 2015 No 2015 A Bill for an Act to amend the Telecommunications Interception and Access Act 1979 and for related purposes Contents 1 2 3 Short title 1 Commencement 1 Schedules 2 Schedule 1—Data retention Part 1—Main amendments Telecommunications Interception and Access Act 1979 Part 2—Other amendments 3 3 23 Australian Security Intelligence Organisation Act 1979 23 Intelligence Services Act 2001 24 Privacy Act 1988 25 Telecommunications Act 1997 26 Telecommunications Interception and Access Act 1979 28 Part 3—Application provisions Schedule 2—Restricting access to stored communications and telecommunications data Part 1—Main amendments Telecommunications Interception and Access Act 1979 Part 2—Other amendments Telecommunications Interception and Access Act 1979 Part 3—Application provisions Schedule 3—Oversight by the Commonwealth Ombudsman Part 1—Amendments Telecommunications Interception and Access Act 1979 Part 2—Application provisions No 3 2015 Telecommunications Interception and Access Amendment Data Retention Bill 2015 53 56 56 56 63 63 69 72 72 72 84 i 3 A Bill for an Act to amend the Telecommunications Interception and Access Act 1979 and for related purposes 4 The Parliament of Australia enacts 5 1 Short title 1 2 This Act may be cited as the Telecommunications Interception and Access Amendment Data Retention Act 2015 6 7 8 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 9 10 11 12 No 2015 Telecommunications Interception and Access Amendment Data Retention Bill 2015 1 1 Commencement information Column 2 Column 3 Provisions Commencement Date Details 1 Sections 1 to 3 and anything in this Act not elsewhere covered by this table The day this Act receives the Royal Assent 2 Schedule 1 items 1 to 7 The day after the end of the period of 6 months beginning on the day this Act receives the Royal Assent 3 Schedule 1 items 8 to 11 The day this Act receives the Royal Assent 4 Schedules 2 and 3 The day after the end of the period of 6 months beginning on the day this Act receives the Royal Assent Note 2 3 4 This table relates only to the provisions of this Act as originally enacted It will not be amended to deal with any later amendments of this Act 2 Any information in column 3 of the table is not part of this Act Information may be inserted in this column or information in it may be edited in any published version of this Act 5 6 7 8 Column 1 3 Schedules Legislation 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 9 10 11 12 2 Telecommunications Interception and Access Amendment Data Retention Bill 2015 No 2015 Data retention Schedule 1 Main amendments Part 1 1 Schedule 1—Data retention 2 Part 1—Main amendments 3 Telecommunications Interception and Access Act 1979 4 1 After Part 5-1 Insert 5 6 Part 5-1A—Data retention 7 Division 1—Obligation to keep information and documents 8 9 187A Service providers must keep certain information and documents 1 A person a service provider who operates a service to which this Part applies a relevant service must keep or cause to be kept in accordance with section 187BA and for the period specified in section 187C a information of a kind specified in or under section 187AA or b documents containing information of that kind relating to any communication carried by means of the service 10 11 12 13 14 15 16 17 Note 1 Subsection 3 sets out the services to which this Part applies 18 19 20 Note 2 Section 187B removes some service providers from the scope of this obligation either completely or in relation to some services they operate 21 22 Note 3 Division 3 provides for exemptions from a service provider’s obligations under this Part 3 This Part applies to a service if a it is a service for carrying communications or enabling communications to be carried by means of guided or unguided electromagnetic energy or both and b it is a service i operated by a carrier or 23 24 25 26 27 28 No 2015 Telecommunications Interception and Access Amendment Data Retention Bill 2015 3 Schedule 1 Data retention Part 1 Main amendments ii operated by an internet service provider within the meaning of Schedule 5 to the Broadcasting Services Act 1992 or iii of a kind for which a declaration under subsection 3A is in force and c the person operating the service owns or operates in Australia infrastructure that enables the provision of any of its relevant services but does not apply to a broadcasting service within the meaning of the Broadcasting Services Act 1992 1 2 3 4 5 6 7 8 9 10 3A The Minister may by legislative instrument declare a service to be a service to which this Part applies 11 12 3B A declaration under subsection 3A a comes into force when it is made or on such later day as is specified in the declaration and b ceases to be in force at the end of the period of 40 sitting days of a House of the Parliament after the declaration comes into force 13 14 15 16 17 18 3C If a Bill is introduced into either House of the Parliament that includes an amendment of subsection 3 the Minister a must refer the amendment to the Parliamentary Joint Committee on Intelligence and Security for review and b must not in that referral specify as the period within which the Committee is to report on its review a period that will end earlier than 15 sitting days of a House of the Parliament after the introduction of the Bill 19 20 21 22 23 24 25 26 4 This section does not require a service provider to keep or cause to be kept a information that is the contents or substance of a communication or 27 28 29 30 Note 31 32 This paragraph puts beyond doubt that service providers are not required to keep information about telecommunications content b information that i states an address to which a communication was sent on the internet from a telecommunications device using 33 34 35 4 Telecommunications Interception and Access Amendment Data Retention Bill 2015 No 2015 Data retention Schedule 1 Main amendments Part 1 an internet access service provided by the service provider and ii was obtained by the service provider only as a result of providing the service or 1 2 3 4 Note 5 6 7 This paragraph puts beyond doubt that service providers are not required to keep information about subscribers’ web browsing history c information to the extent that it relates to a communication that is being carried by means of another service i that is of a kind referred to in paragraph 3 a and ii that is operated by another person using the relevant service operated by the service provider or a document to the extent that the document contains such information or 8 9 10 11 12 13 14 Note 15 16 17 18 19 This paragraph puts beyond doubt that service providers are not required to keep information or documents about communications that pass “over the top” of the underlying service they provide and that are being carried by means of other services operated by other service providers d information that the service provider is required to delete because of a determination made under section 99 of the Telecommunications Act 1997 or a document to the extent that the document contains such information or e information about the location of a telecommunications device that is not information used by the service provider in relation to the relevant service to which the device is connected 20 21 22 23 24 25 26 27 5 Without limiting subsection 1 for the purposes of this section a an attempt to send a communication by means of a relevant service is taken to be the sending of a communication by means of the service if the attempt results in i a connection between the telecommunications device used in the attempt and another telecommunications device or ii an attempted connection between the telecommunications device used in the attempt and another telecommunications device or iii a conclusion being drawn through the operation of the service that a connection cannot be made between the 28 29 30 31 32 33 34 35 36 37 38 39 No 2015 Telecommunications Interception and Access Amendment Data Retention Bill 2015 5 Schedule 1 Data retention Part 1 Main amendments telecommunications device used in the attempt and another telecommunications device and b an untariffed communication by means of a relevant service is taken to be a communication by means of the service 1 2 3 4 6 To avoid doubt if information that subsection 1 requires a service provider to keep in relation to a communication is not created by the operation of a relevant service subsection 1 requires the service provider to use other means to create the information or a document containing the information 5 6 7 8 9 10 187AA Information to be kept 1 The following table sets out the kinds of information that a service provider must keep or cause to be kept under subsection 187A 1 11 12 13 Kinds of information to be kept 6 Item Topic Column 1 Description of information Column 2 1 The subscriber of and accounts services telecommunications devices and other relevant services relating to the relevant service The following a any information that is one or both of the following i any name or address information ii any other information for identification purposes relating to the relevant service being information used by the service provider for the purposes of identifying the subscriber of the relevant service b any information relating to any contract agreement or arrangement relating to the relevant service or to any related account service or device c any information that is one or both of the following i billing or payment information ii contact information relating to the relevant service being information used by the service provider in relation to the relevant service Telecommunications Interception and Access Amendment Data Retention Bill 2015 No 2015 Data retention Schedule 1 Main amendments Part 1 Kinds of information to be kept Item Topic Column 1 Description of information Column 2 d any identifiers relating to the relevant service or any related account service or device being information used by the service provider in relation to the relevant service or any related account service or device e the status of the relevant service or any related account service or device 2 The source of a communication Identifiers of a related account service or device from which the communication has been sent by means of the relevant service 3 The destination of a communication Identifiers of the account telecommunications device or relevant service to which the communication a has been sent or b has been forwarded routed or transferred or attempted to be forwarded routed or transferred 4 The date time and duration of a communication or of its connection to a relevant service The date and time including the time zone of the following relating to the communication with sufficient accuracy to identify the communication a the start of the communication b the end of the communication c the connection to the relevant service d the disconnection from the relevant service 5 The type of a communication or of a relevant service used in connection with a communication The following a the type of communication Examples Voice SMS email chat forum social media b the type of the relevant service Examples ADSL Wi-Fi VoIP cable GPRS VoLTE LTE c the features of the relevant service that were or would have been used by or enabled for the communication Examples No 2015 Call waiting call forwarding data Telecommunications Interception and Access Amendment Data Retention Bill 2015 7 Schedule 1 Data retention Part 1 Main amendments Kinds of information to be kept Item Topic Column 1 Description of information Column 2 volume usage Note 6 The location of equipment or a line used in connection with a communication This item will only apply to the service provider operating the relevant service see paragraph 187A 4 c The following in relation to the equipment or line used to send or receive the communication a the location of the equipment or line at the start of the communication b the location of the equipment or line at the end of the communication Examples Cell towers Wi-Fi hotspots 2 The Minister may by legislative instrument make a declaration modifying including by adding omitting or substituting the table in subsection 1 or that table as previously modified under this subsection 1 2 3 4 3 A declaration under subsection 2 a comes into force when it is made or on such later day as is specified in the declaration and b ceases to be in force at the end of the period of 40 sitting days of a House of the Parliament after the declaration comes into force 5 6 7 8 9 10 4 If a Bill is introduced into either House of the Parliament that includes an amendment of subsection 187A 4 or subsection 1 or 5 of this section the Minister a must refer the amendment to the Parliamentary Joint Committee on Intelligence and Security for review and b must not in that referral specify as the period within which the Committee is to report on its review a period that will end earlier than 15 sitting days of a House of the Parliament after the introduction of the Bill 11 12 13 14 15 16 17 18 19 5 For the purposes of items 2 3 4 and 6 of the table in subsection 1 and any modifications of those items under subsection 2 2 or 20 21 8 Telecommunications Interception and Access Amendment Data Retention Bill 2015 No 2015 Data retention Schedule 1 Main amendments Part 1 more communications that together constitute a single communications session are taken to be a single communication 1 2 3 187B Certain service providers not covered by this Part 1 Subsection 187A 1 does not apply to a service provider other than a carrier that is not a carriage service provider in relation to a relevant service that it operates if a the service i is provided only to a person’s immediate circle within the meaning of section 23 of the Telecommunications Act 1997 or ii is provided only to places that under section 36 of that Act are all in the same area and b the service is not subject to a declaration under subsection 2 of this section 4 5 6 7 8 9 10 11 12 13 14 2 The Communications Access Co-ordinator may declare that subsection 187A 1 applies in relation to a relevant service that a service provider operates 15 16 17 2A Before making the declaration the Communications Access Co-ordinator may consult the Privacy Commissioner 18 19 28 3 In considering whether to make the declaration the Communications Access Co-ordinator must have regard to a the interests of law enforcement and national security and b the objects of the Telecommunications Act 1997 and ba the objects of the Privacy Act 1988 and bb any submissions made by the Privacy Commissioner because of the consultation under subsection 2A and c any other matter that the Communications Access Co-ordinator considers relevant 29 4 The declaration must be in writing 30 5 A declaration made under subsection 2 is not a legislative instrument 20 21 22 23 24 25 26 27 31 No 2015 Telecommunications Interception and Access Amendment Data Retention Bill 2015 9 Schedule 1 Data retention Part 1 Main amendments 6 As soon as practicable after making a declaration under subsection 2 the Communications Access Co-ordinator must give written notice of the declaration to the Minister 1 2 3 7 As soon as practicable after receiving the notice under subsection 6 the Minister must give written notice of the declaration to the Parliamentary Joint Committee on Intelligence and Security 4 5 6 7 8 187BA Ensuring the confidentiality of information A service provider must protect the confidentiality of information that or information in a document that the service provider must keep or cause to be kept under section 187A by a encrypting the information and b protecting the information from unauthorised interference or unauthorised access 9 10 11 12 13 14 15 187C Period for keeping information and documents 1 The period for which a service provider must keep or cause to be kept information or a document under section 187A is a if the information is about or the document contains information about a matter of a kind described in paragraph a or b in column 2 of item 1 of the table in subsection 187AA 1 —the period i starting when the information or document came into existence and ii ending 2 years after the closure of the account to which the information or document relates or b otherwise—the period i starting when the information or document came into existence and ii ending 2 years after it came into existence 16 17 18 19 20 21 22 23 24 25 26 27 28 29 2 However the regulations may prescribe that in relation to a specified matter of a kind described in paragraph a or b in column 2 of item 1 of the table in subsection 187AA 1 the period under subsection 1 of this section is the period referred to in paragraph 1 b of this section 30 31 32 33 34 10 Telecommunications Interception and Access Amendment Data Retention Bill 2015 No 2015 Data retention Schedule 1 Main amendments Part 1 3 This section does not prevent a service provider from keeping information or a document for a period that is longer than the period provided under this section 1 2 3 Note 4 5 Division 3 provides for reductions in periods specified under this section 6 Division 2—Data retention implementation plans 7 187D Effect of data retention implementation plans While there is in force a data retention implementation plan for a relevant service operated by a service provider a the service provider must comply with the plan in relation to communications carried by means of that service but b the service provider is not required to comply with subsection 187A 1 or section 187BA or 187C in relation to those communications 8 9 10 11 12 13 14 15 187E Applying for approval of data retention implementation plans 16 1 A service provider may apply to the Communications Access Co-ordinator for approval of a data retention implementation plan for one or more relevant services operated by the service provider 17 18 2 The plan must specify in relation to each such service a an explanation of the current practices for keeping and ensuring the confidentiality of information and documents that section 187A would require to be kept if the plan were not in force and b details of the interim arrangements that the service provider proposes to be implemented while the plan is in force for keeping and ensuring the confidentiality of such information and documents to the extent that the information and documents will not be kept in compliance with section 187A and sections 187BA and 187C and c the day by which the service provider will comply with section 187A and sections 187BA and 187C in relation to all such information and documents except to the extent that any decisions under Division 3 apply 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 No 2015 Telecommunications Interception and Access Amendment Data Retention Bill 2015 11 Schedule 1 Data retention Part 1 Main amendments 3 The day specified under paragraph 2 c must not be later than the day on which the plan would if approved cease to be in force under section 187H in relation to the service 1 2 3 4 The plan must also specify a any relevant services operated by the service provider that the plan does not cover and b the contact details of the officers or employees of the service provider in relation to the plan 4 5 6 7 8 9 187F Approval of data retention implementation plans 1 If under section 187E a service provider applies for approval of a data retention implementation plan the Communications Access Co-ordinator must a approve the plan and notify the service provider of the approval or b give the plan back to the service provider with a written request for the service provider to amend the plan to take account of specified matters 10 11 12 13 14 15 16 17 2 Before making a decision under subsection 1 the Communications Access Co-ordinator must take into account a the desirability of achieving substantial compliance with section 187A and sections 187BA and 187C as soon as practicable and b the extent to which the plan would reduce the regulatory burden imposed on the service provider by this Part and c if at the time the Co-ordinator receives the application the service provider is contravening section 187A or section 187BA or 187C in relation to one or more services covered by the application—the reasons for the contravention and d the interests of law enforcement and national security and e the objects of the Telecommunications Act 1997 and f any other matter that the Co-ordinator considers relevant 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 3 If the Communications Access Co-ordinator does not within 60 days after the day the Co-ordinator receives the application a make a decision on the application and 33 34 35 12 Telecommunications Interception and Access Amendment Data Retention Bill 2015 No 2015 Data retention Schedule 1 Main amendments Part 1 b communicate to the applicant the decision on the application the Co-ordinator is taken at the end of that period of 60 days to have made the decision that the service provider applied for and to have notified the service provider accordingly 1 2 3 4 4 A decision that is taken under subsection 3 to have been made in relation to a service provider that applied for the decision has effect only until the Communications Access Co-ordinator makes and communicates to the service provider a decision on the application 5 6 7 8 9 10 187G Consultation with agencies and the ACMA 1 As soon as practicable after receiving an application under section 187E to approve a data retention implementation plan the original plan the Communications Access Co-ordinator must a give a copy of the plan to the enforcement agencies and security authorities that in the opinion of the Co-ordinator are likely to be interested in the plan and b invite each such enforcement agency or security authority to provide comments on the plan to the Co-ordinator The Co-ordinator may give a copy of the plan to the ACMA 11 12 13 14 15 16 17 18 19 Request for amendment of original plan 20 2 If a the Communications Access Co-ordinator receives a comment from an enforcement agency or security authority requesting an amendment of the original plan and b the Co-ordinator considers the request to be a reasonable one the Co-ordinator c must request that the service provider make the amendment within 30 days the response period after receiving the comment or summary and d may give the service provider a copy of the comment or a summary of the comment 21 22 23 24 25 26 27 28 29 30 31 No 2015 Telecommunications Interception and Access Amendment Data Retention Bill 2015 13 Schedule 1 Data retention Part 1 Main amendments Response to request for amendment of original plan 1 3 The service provider must respond to a request for an amendment of the original plan either a by indicating its acceptance of the request by amending the original plan appropriately and by giving the amended plan to the Communications Access Co-ordinator within the response period or b by indicating that it does not accept the request and providing its reasons for that non-acceptance 2 3 4 5 6 7 8 9 The ACMA’s role 10 4 If the service provider indicates that it does not accept a request for an amendment of the original plan the Communications Access Co-ordinator must a refer the request and the service provider’s response to the ACMA and b request the ACMA to determine whether any amendment of the original plan is required 11 12 13 14 15 16 17 5 The ACMA must then a determine in writing that no amendment of the original plan is required in response to the request for the amendment or b if in the opinion of the ACMA i the request for the amendment is a reasonable one and ii the service provider’s response to the request for the amendment is not reasonable determine in writing that the original plan should be amended in a specified manner and give a copy of the determination to the service provider 18 19 20 21 22 23 24 25 26 27 28 Co-ordinator to approve amended plan or to refuse approval 29 6 The Communications Access Co-ordinator must a if on receipt of a determination under paragraph 5 b the service provider amends the original plan to take account of that determination and gives the amended plan to the Communications Access Co-ordinator—approve the plan as amended and notify the service provider of the approval or 30 31 32 33 34 14 Telecommunications Interception and Access Amendment Data Retention Bill 2015 No 2015 Data retention Schedule 1 Main amendments Part 1 b otherwise—refuse to approve the plan and notify the service provider of the refusal 1 2 ACMA determination not a legislative instrument 3 7 A determination made under subsection 5 is not a legislative instrument 4 5 6 187H When data retention implementation plans are in force 1 A data retention implementation plan for a relevant service operated by a service provider a comes into force when the Communications Access Co-ordinator notifies the service provider of the approval of the plan and b ceases to be in force in relation to that service i if the service provider was operating the service at the commencement of this Part—at the end of the implementation phase for this Part or ii if the service provider was not operating the service at the commencement of this Part—at the end of the period of 18 months starting on the day the service provider started to operate the service after that commencement 7 8 9 10 11 12 13 14 15 16 17 18 19 20 2 The implementation phase for this Part is the period of 18 months starting on the commencement of this Part 21 22 23 187J Amending data retention implementation plans 1 If a service provider’s data retention implementation plan is in force it may be amended only if a the service provider applies to the Communications Access Co-ordinator for approval of the amendment and the Co-ordinator approves the amendment or b the Co-ordinator makes a request to the service provider for the amendment to be made and the service provider agrees to the amendment 24 25 26 27 28 29 30 31 2 Section 187F applies in relation to approval of the amendment under paragraph 1 a as if the application for approval of the 32 33 No 2015 Telecommunications Interception and Access Amendment Data Retention Bill 2015 15 Schedule 1 Data retention Part 1 Main amendments amendment were an application under section 187E for approval of a data retention implementation plan 1 2 3 An amendment of a data retention implementation plan a comes into force when i if paragraph 1 a applies—the Co-ordinator notifies the service provider of the approval of the amendment or ii if paragraph 1 b applies—the service provider notifies the Co-ordinator of the service provider’s agreement to the amendment but b does not effect when the plan ceases to be in force under paragraph 187H 1 b 3 4 5 6 7 8 9 10 11 12 13 14 15 Division 3—Exemptions 187K The Communications Access Co-ordinator may grant exemptions or variations Decision to exempt or vary 16 31 1 The Communications Access Co-ordinator may a exempt a specified service provider from the obligations imposed on the service provider under this Part either generally or in so far as they relate to a specified kind of relevant service or b vary the obligations imposed on a specified service provider under this Part either generally or in so far as they relate to a specified kind of relevant service or c vary in relation to a specified service provider a period specified in section 187C either generally or in relation to information or documents that relate to a specified kind of relevant service A variation must not impose obligations that would exceed the obligations to which a service provider would otherwise be subject under sections 187A and 187C 32 2 The decision must be in writing 33 3 The decision may be 17 18 19 20 21 22 23 24 25 26 27 28 29 30 16 Telecommunications Interception and Access Amendment Data Retention Bill 2015 No 2015 Data retention Schedule 1 Main amendments Part 1 a unconditional or b subject to such conditions as are specified in the decision 1 2 4 A decision made under subsection 1 is not a legislative instrument 3 4 Effect of applying for exemption or variation 5 5 If a service provider applies in writing to the Communications Access Co-ordinator for a particular decision under subsection 1 relating to the service provider a the Co-ordinator i must give a copy of the application to the enforcement agencies and security authorities that in the opinion of the Co-ordinator are likely to be interested in the application and ii may give a copy of the application to the ACMA and b if the Co-ordinator does not within 60 days after the day the Co-ordinator receives the application i make a decision on the application and ii communicate to the applicant the decision on the application the Co-ordinator is taken at the end of that period of 60 days to have made the decision that the service provider applied for 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 6 A decision that is taken under paragraph 5 b to have been made in relation to a service provider that applied for the decision has effect only until the Communications Access Co-ordinator makes and communicates to the service provider a decision on the application 23 24 25 26 27 Matters to be taken into account 28 7 Before making a decision under subsection 1 in relation to a service provider the Communications Access Co-ordinator must take into account a the interests of law enforcement and national security and b the objects of the Telecommunications Act 1997 and 29 30 31 32 33 No 2015 Telecommunications Interception and Access Amendment Data Retention Bill 2015 17 Schedule 1 Data retention Part 1 Main amendments c the service provider’s history of compliance with this Part and d the service provider’s costs or anticipated costs of complying with this Part and e any alternative data retention or information security arrangements that the service provider has identified 1 2 3 4 5 6 8 The Communications Access Co-ordinator may take into account any other matter he or she considers relevant 7 8 9 187KA Review of exemption or variation decisions 1 A service provider may apply in writing to the ACMA for review of a decision under subsection 187K 1 relating to the service provider 10 11 12 2 The ACMA must a confirm the decision or b substitute for that decision another decision that could have been made under subsection 187K 1 A substituted decision under paragraph b has effect other than for the purposes of this section as if it were a decision of the Communications Access Co-ordinator under subsection 187K 1 13 14 15 16 17 18 19 3 Before considering its review of the decision under subsection 187K 1 the ACMA must give a copy of the application to a the Communications Access Co-ordinator and b any enforcement agencies and security authorities that were given under subparagraph 187K 5 a i a copy of the application for the decision under review and c any other enforcement agencies and security authorities that in the opinion of the ACMA are likely to be interested in the application 20 21 22 23 24 25 26 27 28 29 Matters to be taken into account 30 4 Before making a decision under subsection 2 in relation to a service provider the ACMA must take into account a the interests of law enforcement and national security and 31 32 33 18 Telecommunications Interception and Access Amendment Data Retention Bill 2015 No 2015 Data retention Schedule 1 Main amendments Part 1 b the objects of the Telecommunications Act 1997 and c the service provider’s history of compliance with this Part and d the service provider’s costs or anticipated costs of complying with this Part and e any alternative data retention or information security arrangements that the service provider has identified 1 2 3 4 5 6 7 5 The ACMA may take into account any other matter it considers relevant 8 9 10 11 12 Division 4—Miscellaneous 187KB Commonwealth may make a grant of financial assistance to service providers 1 The Commonwealth may make a grant of financial assistance to a service provider for the purpose of assisting the service provider to comply with the service provider’s obligations under this Part 13 14 15 2 The terms and conditions on which that financial assistance is granted are to be set out in a written agreement between the Commonwealth and the service provider 16 17 18 3 An agreement under subsection 2 may be entered into on behalf of the Commonwealth by the Minister 19 20 21 187L Confidentiality of applications 1 If the Communications Access Co-ordinator receives a service provider’s application under section 187E for approval of a data retention implementation plan or application for a decision under subsection 187K 1 the Co-ordinator must a treat the application as confidential and b ensure that it is not disclosed to any other person or body other than the ACMA an enforcement agency or a security authority without the written permission of the service provider 22 23 24 25 26 27 28 29 30 No 2015 Telecommunications Interception and Access Amendment Data Retention Bill 2015 19 Schedule 1 Data retention Part 1 Main amendments 1A If the ACMA receives a service provider’s application under section 187KA for review of a decision under subsection 187K 1 the ACMA must a treat the application as confidential and b ensure that it is not disclosed to any other person or body other than the Communications Access Co-ordinator an enforcement agency or a security authority without the written permission of the service provider 1 2 3 4 5 6 7 8 2 The ACMA the Communications Access Co-ordinator an enforcement agency or a security authority must if it receives under subsection 187G 1 paragraph 187K 5 a or subsection 187KA 3 a copy of a service provider’s application a treat the copy as confidential and b ensure that it is not disclosed to any other person or body without the written permission of the service provider 9 10 11 12 13 14 15 16 187LA Application of the Privacy Act 1988 1 The Privacy Act 1988 applies in relation to a service provider as if the service provider were an organisation within the meaning of that Act to the extent that the activities of the service provider relate to retained data 17 18 19 20 2 Information that is kept under this Part or information that is in a document kept under this Part is taken for the purposes of the Privacy Act 1988 to be personal information about an individual if the information relates to a the individual or b a communication to which the individual is a party 21 22 23 24 25 26 27 187M Pecuniary penalties and infringement notices Subsection 187A 1 and paragraph 187D a are civil penalty provisions for the purposes of the Telecommunications Act 1997 28 29 Note 30 31 32 20 Parts 31 and 31B of the Telecommunications Act 1997 provide for pecuniary penalties and infringement notices for contraventions of civil penalty provisions Telecommunications Interception and Access Amendment Data Retention Bill 2015 No 2015 Data retention Schedule 1 Main amendments Part 1 1 187N Review of operation of Part 1 The Parliamentary Joint Committee on Intelligence and Security must review the operation of this Part 2 3 1A The review a must start on or before the second anniversary of the end of the implementation phase and b must be concluded on or before the third anniversary of the end of the implementation phase 4 5 6 7 8 2 The Committee must give the Minister a written report of the review 9 10 3 Until the review is completed the head however described of an enforcement agency must keep a all of the documents that he or she is required to retain under section 185 and b all of the information that he or she is required by paragraphs 186 1 e to k to include in a report under subsection 186 1 relating to the period starting on the commencement of this Part and ending when the review is completed 11 12 13 14 15 16 17 18 19 4 Until the review is completed the Director-General of Security must keep a all of the authorisations made under Division 3 of Part 4-1 and b all of the information that he or she is required by paragraphs 94 2A c to j of the Australian Security Intelligence Organisation Act 1979 to include in a report referred to in subsection 94 1 of that Act relating to the period starting on the commencement of this Part and ending when the review is completed 20 21 22 23 24 25 26 27 28 29 5 Subsections 3 and 4 do not limit any other obligation to keep information under this Act or another law 30 31 No 2015 Telecommunications Interception and Access Amendment Data Retention Bill 2015 21 Schedule 1 Data retention Part 1 Main amendments 1 187P Annual reports 1 The Minister must as soon as practicable after each 30 June cause to be prepared a written report on the operation of this Part during the year ending on that 30 June 2 3 4 1A Without limiting the matters that may be included in a report under subsection 1 it must include information about a the costs to service providers of complying with this Part and b the use of data retention implementation plans approved under Division 2 of this Part 5 6 7 8 9 10 2 A report under subsection 1 must be included in the report prepared under subsection 186 2 relating to the year ending on that 30 June 11 12 13 3 A report under subsection 1 must not be made in a manner that is likely to enable the identification of a person 14 15 22 Telecommunications Interception and Access Amendment Data Retention Bill 2015 No 2015 Data retention Schedule 1 Other amendments Part 2 1 Part 2—Other amendments 2 Australian Security Intelligence Organisation Act 1979 3 1A Section 4 Insert 4 retained data has the same meaning as in the Telecommunications Interception and Access Act 1979 5 6 7 1B Paragraphs 94 2A a and b Omit “year” substitute “period” 8 9 1C At the end of subsection 94 2A Add and c the number of authorisations made during the period under section 175 and subsection 176 3 of the Telecommunications Interception and Access Act 1979 and d the purposes for which those authorisations were made and e the lengths of time for which the information or documents that were or would have been covered by those authorisations had been held when access was sought and f the number of those authorisations that related to retained data that included information of a kind referred to in item 1 of the table in subsection 187AA 1 of that Act and g the number of those authorisations that related to retained data that included information of a kind referred to in item 2 3 4 5 or 6 of the table in subsection 187AA 1 of that Act and h the number of those authorisations that were made under journalist information warrants issued under Subdivision B of Division 4C of Part 4-1 of that Act and i the number of journalist information warrants issued under that Subdivision during the period and j information of a kind declared under subsection 2C of this section 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 No 2015 Telecommunications Interception and Access Amendment Data Retention Bill 2015 23 Schedule 1 Data retention Part 2 Other amendments 1 1D After subsection 94 2A Insert 2 2B A report under subsection 1 is to set out the matters referred to in paragraph 2A e by specifying a in relation to each of 8 successive periods of 3 months the number of the authorisations sought for information or documents held for lengths of time included in that period and b the number of the authorisations sought for information or documents held for lengths of time exceeding 24 months 3 4 5 6 7 8 9 10 2C The Minister may by legislative instrument declare kinds of information that are to be set out in a report under subsection 1 11 12 13 Intelligence Services Act 2001 14 1E Section 3 Insert 15 retained data activity means an activity relating to information or documents that a service provider has been required to keep under Part 5-1A of the Telecommunications Interception and Access Act 1979 16 17 18 19 service provider has the same meaning as in the Telecommunications Interception and Access Act 1979 20 21 22 1F After paragraph 29 1 bb Insert bc to conduct the review under section 187N of the Telecommunications Interception and Access Act 1979 and bd subject to subsection 5 to review any matter that i relates to the retained data activities of ASIO and ii is included under paragraph 94 2A c d e f g h i or j of the Australian Security Intelligence Organisation Act 1979 in a report referred to in subsection 94 1 of that Act and be subject to subsection 5 to review any matter that 23 24 25 26 27 28 29 30 31 32 24 Telecommunications Interception and Access Amendment Data Retention Bill 2015 No 2015 Data retention Schedule 1 Other amendments Part 2 i relates to the retained data activities of the AFP in relation to offences against Part 5 3 of the Criminal Code and ii is set out under paragraph 186 1 e f g h i j or k of the Telecommunications Interception and Access Act 1979 in a report under subsection 186 1 of that Act and 1 2 3 4 5 6 7 8 1G At the end of section 29 Add 9 4 Subject to subsection 5 paragraphs 3 c and k do not apply to things done in the performance of the Committee’s functions under paragraphs 1 bd and be 10 11 12 5 The Committee’s functions under paragraphs 1 bd and be a are to be performed for the sole purpose of assessing and making recommendations on the overall operation and effectiveness of Part 5-1A of the Telecommunications Interception and Access Act 1979 and b do not permit reviewing the retained data activities of service providers and c may not be performed for any purpose other than that set out in paragraph a 13 14 15 16 17 18 19 20 21 Note 22 23 24 25 26 27 The performance of the Committee’s functions under paragraphs 1 bd and be are also subject to the requirements of Schedule 1 Privacy Act 1988 1H Subsection 6 1 at the end of the definition of personal information Add 28 Note 29 30 31 Section 187LA of the Telecommunications Interception and Access Act 1979 extends the meaning of personal information to cover information kept under Part 5-1A of that Act 32 1J Subsection 6C 1 note 33 Repeal the note substitute No 2015 Telecommunications Interception and Access Amendment Data Retention Bill 2015 25 Schedule 1 Data retention Part 2 Other amendments 1 2 3 4 Note 1 Under section 187LA of the Telecommunications Interception and Access Act 1979 service providers are in relation to their activities relating to retained data treated as organisations for the purposes of this Act 5 6 7 Note 2 Regulations may prescribe an instrumentality by reference to one or more classes of instrumentality See subsection 13 3 of the Legislative Instruments Act 2003 8 9 10 Telecommunications Act 1997 2 Section 7 at the end of the definition of civil penalty provision Add or c a provision of the Telecommunications Interception and Access Act 1979 that is declared by that Act to be a civil penalty provision for the purposes of this Act 11 12 13 14 15 3 Subsection 105 5A Repeal the subsection substitute 16 5A The ACMA must monitor and report each financial year to the Minister on a the operation of Part 14 and on the costs of compliance with the requirements of that Part and b without limiting paragraph a the costs of compliance with the requirements of Part 5-1A of the Telecommunications Interception and Access Act 1979 about data retention 17 18 19 20 21 22 23 24 3A After subsection 280 1A Insert 25 1B Subject to subsection 1C paragraph 1 b does not apply to a disclosure of information or a document if a the disclosure is required or authorised because of i a subpoena or ii a notice of disclosure or iii an order of a court in connection with a civil proceeding and 26 27 28 29 30 31 32 26 Telecommunications Interception and Access Amendment Data Retention Bill 2015 No 2015 Data retention Schedule 1 Other amendments Part 2 b the information or document is kept by a service provider within the meaning of the Telecommunications Interception and Access Act 1979 solely for the purpose of complying with Part 5-1A of that Act and c the information or document is not used or disclosed by the service provider for any purpose other than one or more of the following purposes i complying with Part 5-1A of that Act ii complying with the requirements of warrants under Chapters 2 and 3 of that Act or authorisations under Chapter 4 of that Act iii complying with requests or requirements to make disclosures provided for by sections 284 to 288 of this Act iv providing persons with access to their personal information in accordance with the Privacy Act 1988 v a purpose prescribed by the regulations vi a purpose incidental to any of the purposes referred to in subparagraphs i to v 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 1C Subsection 1B does not apply a in circumstances of a kind prescribed by the regulations or b to a disclosure to an enforcement agency within the meaning of the Telecommunications Interception and Access Act 1979 or c to a disclosure that occurs during the implementation phase within the meaning of that Act 20 21 22 23 24 25 26 27 3B Section 281 Before “Division 2” insert “ 1 ” 28 29 3C At the end of section 281 Add 30 2 Subject to subsection 3 this section does not apply to a disclosure of information or a document by a person as a witness in a civil proceeding if the information or document a is kept by a service provider within the meaning of the Telecommunications Interception and Access Act 1979 31 32 33 34 35 No 2015 Telecommunications Interception and Access Amendment Data Retention Bill 2015 27 Schedule 1 Data retention Part 2 Other amendments solely for the purpose of complying with Part 5-1A of that Act and b is not used or disclosed by the service provider for any purpose other than one or more of the following purposes i complying with Part 5-1A of that Act ii complying with the requirements of warrants under Chapters 2 and 3 of that Act or authorisations under Chapter 4 of that Act iii complying with requests or requirements to make disclosures provided for by sections 284 to 288 of this Act iv providing persons with access to their personal information in accordance with the Privacy Act 1988 v a purpose prescribed by the regulations vi a purpose incidental to any of the purposes referred to in subparagraphs i to v 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 3 Subsection 2 does not apply a in circumstances of a kind prescribed by the regulations or b to a disclosure to an enforcement agency within the meaning of the Telecommunications Interception and Access Act 1979 or c to a disclosure that occurs during the implementation phase within the meaning of that Act 17 18 19 20 21 22 23 24 4 Subsection 314 8 Omit “Part 5-3 or 5-5 of the Telecommunications Interception and Access Act 1979 about” substitute “Part 5-1A 5-3 or 5-5 of the Telecommunications Interception and Access Act 1979 about data retention ” 25 26 27 28 29 Telecommunications Interception and Access Act 1979 30 5 Subsection 5 1 31 Insert Defence Minister has the same meaning as in the Intelligence Services Act 2001 32 33 28 Telecommunications Interception and Access Amendment Data Retention Bill 2015 No 2015 Data retention Schedule 1 Other amendments Part 2 Foreign Affairs Minister has the same meaning as in the Intelligence Services Act 2001 1 2 IGIS official has the same meaning as in the Australian Security Intelligence Organisation Act 1979 3 4 implementation phase has the meaning given by subsection 187H 2 5 6 infrastructure means any line or equipment used to facilitate communications across a telecommunications network 7 8 journalist information warrant means a warrant issued under Division 4C of Part 4-1 9 10 Part 4-1 issuing authority means a person in respect of whom an appointment is in force under section 6DC 11 12 Public Interest Advocate means a person declared under section 180X to be a Public Interest Advocate 13 14 related account service or device in relation to a service to which Part 5-1A applies means a an account or b a telecommunications device or c another service of a kind referred to in paragraph 187A 3 a that is related to the service 15 16 17 18 19 20 22 retained data means information or documents that a service provider is or has been required to keep under Part 5-1A 23 service provider has the meaning given by subsection 187A 1 24 source except in item 2 of the table in subsection 187AA 1 means a person who provides information a to another person who is working in a professional capacity as a journalist and b in the normal course of the other person’s work in such a capacity and c in the expectation that the information may be disseminated in the form of i news current affairs or a documentary or 21 25 26 27 28 29 30 31 32 No 2015 Telecommunications Interception and Access Amendment Data Retention Bill 2015 29 Schedule 1 Data retention Part 2 Other amendments ii commentary or opinion on or analysis of news current affairs or a documentary 1 2 3 6 At the end of subsection 6R 3 Add “and all the enforcement agencies” 4 5 6A After section 6DB Insert 6 7 6DC Part 4-1 issuing authorities 1 The Minister may by writing appoint as a Part 4-1 issuing authority a a person who is i a judge of a court created by the Parliament or iii a magistrate and in relation to whom a consent under subsection 2 is in force or b a person who i holds an appointment to the Administrative Appeals Tribunal as Deputy President full-time senior member part-time senior member or member and ii is enrolled as a legal practitioner of a federal court or of the Supreme Court of a State or a Territory and iii has been enrolled for at least 5 years 8 9 10 11 12 13 14 15 16 17 18 19 20 21 2 A person who is a a judge of a court created by the Parliament or b a magistrate may by writing consent to be appointed by the Minister under subsection 1 22 23 24 25 26 3 A person’s appointment ceases to have effect if a the person ceases to be a person whom the Minister could appoint under this section or b the Minister by writing revokes the appointment 27 28 29 30 4 A Part 4-1 issuing authority has in relation to the performance or exercise of a function or power conferred on a Part 4-1 issuing 31 32 30 Telecommunications Interception and Access Amendment Data Retention Bill 2015 No 2015 Data retention Schedule 1 Other amendments Part 2 authority by this Act the same protection and immunity as a Justice of the High Court has in relation to proceedings in the High Court 1 2 3 4 6B Section 64 heading Repeal the heading substitute 5 7 64 Dealing in connection with Organisation’s or Inspector-General’s functions 8 6C Subsection 64 1 6 After “its functions” insert “or the performance by the Inspector-General of Intelligence and Security of his or her functions” 9 10 11 6D Subsection 64 2 Repeal the subsection substitute 12 2 A person being the Director-General of Security or an ASIO employee ASIO affiliate or IGIS official may a in connection with the performance by the Organisation of its functions or b in connection with the performance by the Inspector-General of Intelligence and Security of his or her functions communicate to another such person make use of or make a record of foreign intelligence information 13 14 15 16 17 18 19 20 21 6E Paragraph 176 5 b Repeal the paragraph substitute b unless it is revoked earlier ends at the time specified in the authorisation which must be a time that i is no later than the end of the period of 90 days beginning on the day the authorisation is made and ii if the authorisation is made under a journalist information warrant—is no later than the end of the period specified under section 180N as the period for which the warrant is to remain in force 22 23 24 25 26 27 28 29 30 No 2015 Telecommunications Interception and Access Amendment Data Retention Bill 2015 31 Schedule 1 Data retention Part 2 Other amendments 1 6F Subsection 176 6 Repeal the subsection substitute 2 Revoking the authorisation 3 6 An eligible person must revoke the authorisation if a he or she is satisfied that the disclosure is no longer required or b in a case where the authorisation is made under a journalist information warrant i the warrant is revoked under subsection 180N 1 or ii the Director-General of Security has informed the Minister under section 180P that the Director-General is satisfied that the grounds on which the warrant was issued have ceased to exist 4 5 6 7 8 9 10 11 12 13 14 Note 15 6G Paragraph 180 6 b Repeal the paragraph substitute b unless it is revoked earlier ends at the time specified in the authorisation which must be a time that i is no later than the end of the period of 45 days beginning on the day the authorisation is made and ii if the authorisation is made under a journalist information warrant—is no later than the end of the period specified under subsection 180U 3 as the period for which the warrant is to remain in force 16 17 18 19 20 21 22 23 24 25 Section 184 deals with notification of authorisations 6H Subsection 180 7 Repeal the subsection substitute 26 Revoking the authorisation 27 7 An authorised officer of the criminal law-enforcement agency must revoke the authorisation if a he or she is satisfied that the disclosure is no longer required or 28 29 30 31 32 Telecommunications Interception and Access Amendment Data Retention Bill 2015 No 2015 Data retention Schedule 1 Other amendments Part 2 b in a case where the authorisation is made under a journalist information warrant—the warrant is revoked under subsection 180W 1 1 2 3 Note 4 5 6J Section 180F Omit “have regard to whether any interference with the privacy of any person or persons that may result from the disclosure or use is justifiable” substitute “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” 6 7 8 9 10 11 6K Before paragraph 180F a Insert aa the gravity of any conduct in relation to which the authorisation is sought including i the seriousness of any offence in relation to which the authorisation is sought and ii the seriousness of any pecuniary penalty in relation to which the authorisation is sought and iii the seriousness of any protection of the public revenue in relation to which the authorisation is sought and iv whether the authorisation is sought for the purposes of finding a missing person 12 13 14 15 16 17 18 19 20 21 22 23 6L After Division 4B of Part 4-1 Insert 24 25 Section 184 deals with notification of authorisations Division 4C—Journalist information warrants 27 Subdivision A—The requirement for journalist information warrants 28 180G The Organisation 26 1 An eligible person within the meaning of subsection 175 2 or 176 2 as the case requires must not make an authorisation under 29 30 No 2015 Telecommunications Interception and Access Amendment Data Retention Bill 2015 33 Schedule 1 Data retention Part 2 Other amendments Division 3 that would authorise the disclosure of information or documents relating to a particular person if a the eligible person knows or reasonably believes that particular person to be i a person who is working in a professional capacity as a journalist or ii an employer of such a person and b a purpose of making the authorisation would be to identify another person whom the eligible person knows or reasonably believes to be a source unless a journalist information warrant is in force in relation to that particular person 1 2 3 4 5 6 7 8 9 10 11 12 2 Nothing in this section affects by implication the kind of person in relation to whom a warrant other than a journalist information warrant may be issued under this Act 13 14 15 16 180H Enforcement agencies 1 An authorised officer of an enforcement agency must not make an authorisation under section 178 178A 179 or 180 that would authorise the disclosure of information or documents relating to a particular person if a the authorised officer knows or reasonably believes that particular person to be i a person who is working in a professional capacity as a journalist or ii an employer of such a person and b a purpose of making the authorisation would be to identify another person whom the authorised officer knows or reasonably believes to be a source unless a journalist information warrant is in force in relation to that particular person under which authorised officers of the agency may make authorisations under that section 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 2 An authorised officer of the Australian Federal Police must not make an authorisation under Division 4A that would authorise the disclosure of information or documents relating to a particular person if 32 33 34 35 34 Telecommunications Interception and Access Amendment Data Retention Bill 2015 No 2015 Data retention Schedule 1 Other amendments Part 2 a the authorised officer knows or reasonably believes that particular person to be i a person who is working in a professional capacity as a journalist or ii an employer of such a person and b a purpose of making the authorisation would be to identify another person whom the authorised officer knows or reasonably believes to be a source 1 2 3 4 5 6 7 8 3 Nothing in this section affects by implication the kind of person in relation to whom a warrant other than a journalist information warrant may be issued under this Act 9 10 11 13 Subdivision B—Issuing journalist information warrants to the Organisation 14 180J Requesting a journalist information warrant 12 1 The Director-General of Security may request the Minister to issue a journalist information warrant in relation to a particular person 15 16 2 The request must specify the facts and other grounds on which the Director-General considers it necessary that the warrant be issued 17 18 19 180K Further information 1 The Minister may require the Director-General of Security to give to the Minister within the period specified in the requirement further information in connection with a request under this Subdivision 20 21 22 23 2 If the Director-General breaches the requirement the Minister may a refuse to consider the request or b refuse to take any action or any further action in relation to the request 24 25 26 27 28 29 180L Issuing a journalist information warrant 1 After considering a request under section 180J the Minister must 30 No 2015 Telecommunications Interception and Access Amendment Data Retention Bill 2015 35 Schedule 1 Data retention Part 2 Other amendments a issue a journalist information warrant that authorises the making of authorisations under Division 3 in relation to the particular person to which the request relates or b refuse to issue a journalist information warrant 1 2 3 4 2 The Minister must not issue a journalist information warrant unless the Minister is satisfied that a the Organisation’s functions would extend to the making of authorisations under Division 3 in relation to the particular person and b the public interest in issuing the warrant outweighs the public interest in protecting the confidentiality of the identity of the source in connection with whom authorisations would be made under the authority of the warrant having regard to i the extent to which the privacy of any person or persons would be likely to be interfered with by the disclosure of information or documents under authorisations that are likely to be made under the authority of the warrant and ii the gravity of the matter in relation to which the warrant is sought and iii the extent to which that information or those documents would be likely to assist in the performance of the Organisation’s functions and iv whether reasonable attempts have been made to obtain the information or documents by other means and v any submissions made by a Public Interest Advocate under section 180X and vi any other matters the Minister considers relevant 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 A journalist information warrant issued under this section may specify conditions or restrictions relating to making authorisations under the authority of the warrant 29 30 31 32 180M Issuing a journalist information warrant in an emergency 1 The Director-General of Security may issue a journalist information warrant in relation to a particular person if 33 34 36 Telecommunications Interception and Access Amendment Data Retention Bill 2015 No 2015 Data retention Schedule 1 Other amendments Part 2 a a request under section 180J has been made for the issue of a journalist information warrant in relation to the particular person and b the Minister has not to the knowledge of the Director-General made a decision under section 180L in relation to the request and c within the preceding period of 3 months i the Minister has not refused to issue a journalist information warrant in relation to the particular person and ii the Director-General has not issued such a journalist information warrant and d the Director-General is satisfied that security will be or is likely to be seriously prejudiced if the access to which the request relates does not begin before a journalist information warrant can be issued and made available by the Minister and e either i the issuing of the warrant is authorised under subsection 3 or ii the Director-General is satisfied that none of the Ministers specified in subsection 4 is readily available or contactable 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 2 The Director-General must not issue a journalist information warrant unless the Director-General is satisfied as to the matters set out in paragraphs 180L 2 a and b 24 25 26 Authorisation to issue a warrant under this section 27 3 A Minister specified in subsection 4 may if he or she is satisfied as to the matters set out in paragraphs 180L 2 a and b orally give an authorisation under this subsection for the Director-General to issue the warrant under this section 28 29 30 31 4 The Ministers who may orally give an authorisation are a the Minister or b if the Director-General is satisfied that the Minister is not readily available or contactable—any of the following Ministers 32 33 34 35 36 No 2015 Telecommunications Interception and Access Amendment Data Retention Bill 2015 37 Schedule 1 Data retention Part 2 Other amendments i the Prime Minister ii the Defence Minister iii the Foreign Affairs Minister 1 2 3 5 The authorisation may specify conditions or restrictions relating to issuing the warrant 4 5 6 The Director-General must ensure that a written record of an authorisation given under subsection 3 is made as soon as practicable but no later than 48 hours after the authorisation is given 6 7 8 9 Duration of a warrant under this section 10 7 A journalist information warrant under this section must specify the period not exceeding 48 hours for which it is to remain in force The Minister may revoke the warrant at any time before the end of the specified period 11 12 13 14 Copies of warrant and other documents 15 8 Immediately after issuing a journalist information warrant under this section the Director-General must give the Minister a a copy of the warrant and b a statement of the grounds on which the warrant was issued and c either i a copy of the record made under subsection 6 or ii if the Director-General was satisfied as mentioned in subparagraph 1 e ii —a summary of the facts of the case justifying issuing the warrant 16 17 18 19 20 21 22 23 24 25 9 Within 3 business days after issuing a journalist information warrant under this section the Director-General must give the Inspector-General of Intelligence and Security a a copy of the warrant and b either i a copy of the record made under subsection 6 or 26 27 28 29 30 31 38 Telecommunications Interception and Access Amendment Data Retention Bill 2015 No 2015 Data retention Schedule 1 Other amendments Part 2 ii if the Director-General was satisfied as mentioned in subparagraph 1 e ii —a summary of the facts of the case justifying issuing the warrant 1 2 3 10 Subsection 9 has effect despite subsection 185D 1 4 5 180N Duration of a journalist information warrant A journalist information warrant issued under section 180L must specify the period not exceeding 6 months for which it is to remain in force The Minister may revoke the warrant at any time before the end of the specified period 6 7 8 9 10 11 180P Discontinuance of authorisations before expiry of a journalist information warrant If before a journalist information warrant issued under this Subdivision ceases to be in force the Director-General of Security is satisfied that the grounds on which the warrant was issued have ceased to exist he or she must a forthwith inform the Minister accordingly and b takes such steps as are necessary to ensure that the making of authorisations under the authority of the warrant is discontinued 12 13 14 15 16 17 18 19 20 21 22 23 Subdivision C—Issuing journalist information warrants to enforcement agencies 180Q Enforcement agency may apply for a journalist information warrant 1 An enforcement agency may apply to a Part 4-1 issuing authority for a journalist information warrant in relation to a particular person 24 25 26 2 The application must be made on the agency’s behalf by a if the agency is referred to in subsection 39 2 —a person referred to in that subsection in relation to that agency or b otherwise i the chief officer of the agency or 27 28 29 30 31 No 2015 Telecommunications Interception and Access Amendment Data Retention Bill 2015 39 Schedule 1 Data retention Part 2 Other amendments ii an officer of the agency by whatever name called who holds or is acting in an office or position in the agency nominated under subsection 3 1 2 3 6 3 The chief officer of the agency may in writing nominate for the purposes of subparagraph 2 b ii an office or position in the agency that is involved in the management of the agency 7 4 A nomination under subsection 3 is not a legislative instrument 8 5 The application may be made in writing or in any other form 4 5 9 10 Note 11 180R Further information 1 The Part 4-1 issuing authority may require a in any case—the chief officer of the agency or b if the application is made on the agency’s behalf by a person other than the chief officer—that other person to give to the Part 4-1 issuing authority within the period and in the form specified in the requirement further information in connection with the application 12 13 14 15 16 17 18 2 If the chief officer or other person breaches the requirement the Part 4-1 issuing authority may a refuse to consider the application or b refuse to take any action or any further action in relation to the application 19 20 21 22 23 24 The Electronic Transactions Act 1999 deals with giving information in writing by means of an electronic communication 180S Oaths and affirmations 1 Information given to the Part 4-1 issuing authority in connection with the application must be verified on oath or affirmation 25 26 2 For the purposes of this section the Part 4-1 issuing authority may a administer an oath or affirmation or b authorise another person to administer an oath or affirmation The oath or affirmation may be administered in person or by telephone video call video link or audio link 27 28 29 30 31 40 Telecommunications Interception and Access Amendment Data Retention Bill 2015 No 2015 Data retention Schedule 1 Other amendments Part 2 1 180T Issuing a journalist information warrant 1 After considering an application under section 180Q the Part 4-1 issuing authority must a issue a journalist information warrant that authorises the making of authorisations under one or more of sections 178 178A 179 and 180 in relation to the particular person to which the application relates or b refuse to issue a journalist information warrant 2 3 4 5 6 7 8 2 The Part 4-1 issuing authority must not issue a journalist information warrant unless the Part 4-1 issuing authority is satisfied that a the warrant is reasonably necessary for whichever of the following purposes are applicable i if the warrant would authorise the making of authorisations under section 178—for the enforcement of the criminal law ii if the warrant would authorise the making of authorisations under section 178A—finding a person who the Australian Federal Police or a Police Force of a State has been notified is missing iii if the warrant would authorise the making of authorisations under section 179—the enforcement of a law imposing a pecuniary penalty or for the protection of the public revenue iv if the warrant would authorise the making of authorisations under section 180—the investigation of an offence of a kind referred to in subsection 180 4 and b the public interest in issuing the warrant outweighs the public interest in protecting the confidentiality of the identity of the source in connection with whom authorisations would be made under the authority of the warrant having regard to i the extent to which the privacy of any person or persons would be likely to be interfered with by the disclosure of information or documents under authorisations that are likely to be made under the authority of the warrant and 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 No 2015 Telecommunications Interception and Access Amendment Data Retention Bill 2015 41 Schedule 1 Data retention Part 2 Other amendments ii the gravity of the matter in relation to which the warrant is sought and iii the extent to which that information or those documents would be likely to assist in relation to that matter and iv whether reasonable attempts have been made to obtain the information or documents by other means and v any submissions made by a Public Interest Advocate under section 180X and vi any other matters the Part 4-1 issuing authority considers relevant 1 2 3 4 5 6 7 8 9 10 11 180U Form and content of a journalist information warrant 1 A journalist information warrant issued under this Subdivision must be in accordance with the prescribed form and must be signed by the Part 4-1 issuing authority who issues it 12 13 14 2 A journalist information warrant issued under this Subdivision may specify conditions or restrictions relating to making authorisations under the authority of the warrant 15 16 17 3 A journalist information warrant issued under this Subdivision must specify as the period for which it is to be in force a period of up to 90 days 18 19 20 4 A Part 4-1 issuing authority must not vary a journalist information warrant issued under this Subdivision by extending the period for which it is to be in force 21 22 23 5 Neither of subsections 3 and 4 prevents the issue of a further warrant under this Act in relation to a person in relation to which a warrant under this Act has or warrants under this Act have previously been issued 24 25 26 27 28 180V Entry into force of a journalist information warrant A journalist information warrant issued under this Subdivision comes into force when it is issued 29 30 42 Telecommunications Interception and Access Amendment Data Retention Bill 2015 No 2015 Data retention Schedule 1 Other amendments Part 2 1 2 180W Revocation of a journalist information warrant by chief officer 1 The chief officer of an enforcement agency a may at any time by signed writing revoke a journalist information warrant issued under this Subdivision to the agency and b must do so if he or she is satisfied that the grounds on which the warrant was issued to the agency have ceased to exist 3 4 5 6 7 8 2 The chief officer of an enforcement agency may delegate his or her power under paragraph 1 a to a certifying officer of the agency 9 10 11 Subdivision D—Miscellaneous 12 180X Public Interest Advocates 1 The Prime Minister shall declare in writing one or more persons to be Public Interest Advocates 13 14 2 A Public Interest Advocate may make submissions a to the Minister about matters relevant to i a decision to issue or refuse to issue a journalist information warrant under section 180L or ii a decision about the conditions or restrictions if any that are to be specified in such a warrant or b to a Part 4-1 issuing authority about matters relevant to i a decision to issue or refuse to issue the warrant under section 180T or ii a decision about the conditions or restrictions if any that are to be specified in such a warrant 15 16 17 18 19 20 21 22 23 24 25 27 3 The regulations may prescribe matters relating to the performance of the role of a Public Interest Advocate 28 4 A declaration under subsection 1 is not a legislative instrument 26 29 6M After subparagraph 181A 3 b i Insert 30 No 2015 Telecommunications Interception and Access Amendment Data Retention Bill 2015 43 Schedule 1 Data retention Part 2 Other amendments ia to enable a person to comply with his or her obligations under section 185D or 185E or 1 2 3 6N After paragraph 181A 3 b Insert or c the disclosure is i to an IGIS official for the purpose of the Inspector-General of Intelligence and Security exercising powers or performing functions or duties under the Inspector-General of Intelligence and Security Act 1986 or ii by an IGIS official in connection with the IGIS official exercising powers or performing functions or duties under that Act 4 5 6 7 8 9 10 11 12 13 14 6P After subparagraph 181A 6 b i Insert 15 ia to enable a person to comply with his or her obligations under section 185D or 185E or 16 17 18 6Q After paragraph 181A 6 b Insert or c the use is by an IGIS official in connection with the IGIS official exercising powers or performing functions or duties under the Inspector-General of Intelligence and Security Act 1986 19 20 21 22 23 24 6R After subparagraph 181B 3 b i Insert 25 ia to enable a person to comply with his or her obligations under section 185D or 185E or 26 27 28 6S Before subparagraph 181B 6 b i Insert 29 ia to enable a person to comply with his or her obligations under section 185D or 185E or 30 31 44 Telecommunications Interception and Access Amendment Data Retention Bill 2015 No 2015 Data retention Schedule 1 Other amendments Part 2 1 6T Subsection 182 2 Repeal the subsection substitute 2 Exempt disclosures 3 2 Paragraph 1 b does not apply to a disclosure of non-missing person information if a the disclosure is reasonably necessary i for a person to comply with his or her obligations under section 185D or 185E or ii for the performance by the Organisation of its functions or iii for the enforcement of the criminal law or iv for the enforcement of a law imposing a pecuniary penalty or v for the protection of the public revenue or b the disclosure is i to an IGIS official for the purpose of the Inspector-General of Intelligence and Security exercising powers or performing functions or duties under the Inspector-General of Intelligence and Security Act 1986 or ii by an IGIS official in connection with the IGIS official exercising powers or performing functions or duties under that Act 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Note 24 25 26 A defendant bears an evidential burden in relation to the matter in subsection 2 see subsection 13 3 3 of the Criminal Code 6U Subsection 182 3 Repeal the subsection substitute 27 Exempt uses 28 3 Paragraph 1 b does not apply to a use of non-missing person information if a the use is reasonably necessary i for a person to comply with his or her obligations under section 185D or 185E or 29 30 31 32 33 No 2015 Telecommunications Interception and Access Amendment Data Retention Bill 2015 45 Schedule 1 Data retention Part 2 Other amendments ii for the enforcement of the criminal law or iii for the enforcement of a law imposing a pecuniary penalty or iv for the protection of the public revenue or b the use is by an IGIS official in connection with the IGIS official exercising powers or performing functions or duties under the Inspector-General of Intelligence and Security Act 1986 1 2 3 4 5 6 7 8 Note 9 10 11 6V At the end of Division 6 of Part 4-1 Add 12 13 A defendant bears an evidential burden in relation to the matter in subsection 3 see subsection 13 3 3 of the Criminal Code 182A Disclosure use offences journalist information warrants 1 A person commits an offence if a the person discloses or uses information and b the information is about any of the following i whether a journalist information warrant other than such a warrant that relates only to section 178A has been or is being requested or applied for ii the making of such a warrant iii the existence or non-existence of such a warrant iv the revocation of such a warrant 14 15 16 17 18 19 20 21 22 Penalty Imprisonment for 2 years 23 2 A person commits an offence if a the person discloses or uses a document and b the document consists wholly or partly of any of the following i a journalist information warrant other than such a warrant that relates only to section 178A ii the revocation of such a warrant 24 25 26 27 28 29 30 Penalty Imprisonment for 2 years 31 46 Telecommunications Interception and Access Amendment Data Retention Bill 2015 No 2015 Data retention Schedule 1 Other amendments Part 2 1 182B Permitted disclosure or use journalist information warrants Paragraphs 182A 1 a and 2 a do not apply to a disclosure or use of information or a document if a the disclosure or use is for the purposes of the warrant revocation or notification concerned or b the disclosure or use is reasonably necessary i to enable the making of submissions under section 180X or ii to enable a person to comply with his or her obligations under section 185D or 185E or iii to enable the Organisation to perform its functions or iv to enforce the criminal law or v to enforce a law imposing a pecuniary penalty or vi to protect the public revenue or c in the case of a disclosure—the disclosure is i to an IGIS official for the purpose of the Inspector-General of Intelligence and Security exercising powers or performing functions or duties under the Inspector-General of Intelligence and Security Act 1986 or ii by an IGIS official in connection with the IGIS official exercising powers or performing functions or duties under that Act or d in the case of a use—the use is by an IGIS official in connection with the IGIS official exercising powers or performing functions or duties under the Inspector-General of Intelligence and Security Act 1986 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Note 28 29 30 6W At the end of section 185 Add 31 3 This section does not limit subsection 187N 3 32 33 A defendant bears an evidential burden in relation to the matter in this section see subsection 13 3 3 of the Criminal Code 6X After section 185C Insert 34 No 2015 Telecommunications Interception and Access Amendment Data Retention Bill 2015 47 Schedule 1 Data retention Part 2 Other amendments 1 2 185D Notification etc of authorisations intended to identify media sources The Organisation 3 1 If a journalist information warrant is issued under Subdivision B of Division 4C of Part 4-1 a the Director-General of Security must as soon as practicable give a copy of the warrant to the Inspector-General of Intelligence and Security and b the Minister must as soon as practicable cause the Parliamentary Joint Committee on Intelligence and Security to be notified of the issuing of the warrant 4 5 6 7 8 9 10 11 2 If an authorisation under Division 3 of Part 4-1 is made under the authority of the warrant the Director-General of Security must as soon as practicable after the expiry of the warrant give a copy of the authorisation to the Inspector-General of Intelligence and Security 12 13 14 15 16 3 If a the Inspector-General gives to the Minister a report under section 22 or 25A of the Inspector-General of Intelligence and Security Act 1986 and b the report relates wholly or partly to one or both of the following i a journalist information warrant issued to the Organisation ii one or more authorisations referred to in subsection 2 of this section the Minister must as soon as practicable cause a copy of the report to be given to the Parliamentary Joint Committee on Intelligence and Security 17 18 19 20 21 22 23 24 25 26 27 28 29 4 The Parliamentary Joint Committee on Intelligence and Security may request a briefing from the Inspector-General on a a journalist information warrant or b an authorisation or authorisations to which a report referred to in paragraph 3 b of this section relates 30 31 32 33 34 35 48 Telecommunications Interception and Access Amendment Data Retention Bill 2015 No 2015 Data retention Schedule 1 Other amendments Part 2 Enforcement agencies 1 5 If a journalist information warrant is issued to an enforcement agency a if the agency was the Australian Federal Police i the Commissioner of Police must as soon as practicable give copies of the warrant to the Minister and the Ombudsman and ii the Minister must as soon as practicable after receiving a copy cause the Parliamentary Joint Committee on Intelligence and Security to be notified of the issuing of the warrant and b otherwise—the chief officer of the agency must as soon as practicable give a copy of the warrant to the Ombudsman 2 3 4 5 6 7 8 9 10 11 12 13 6 If an authorisation under Division 4 of Part 4-1 is made under the authority of the warrant the chief officer of the agency must as soon as practicable after the expiry of the warrant give a copy of the authorisation to the Ombudsman 14 15 16 17 7 If a the Ombudsman gives to the Minister a report under section 186J of this Act and b the report relates wholly or partly to one or both of the following i a journalist information warrant issued to the Australian Federal Police ii one or more authorisations referred to in subsection 6 of this section that were made by one or more authorised officers of the Australian Federal Police the Minister must as soon as practicable cause a copy of the report to be given to the Parliamentary Joint Committee on Intelligence and Security 18 19 20 21 22 23 24 25 26 27 28 29 30 8 The Parliamentary Joint Committee on Intelligence and Security may request a briefing from the Ombudsman on a a journalist information warrant or b an authorisation or authorisations to which a report referred to in paragraph 7 b of this section relates 31 32 33 34 35 36 No 2015 Telecommunications Interception and Access Amendment Data Retention Bill 2015 49 Schedule 1 Data retention Part 2 Other amendments 1 185E Reports on access to retained data The Organisation 2 1 If a the Inspector-General of Intelligence and Security gives to the Minister a report under section 22 or 25A of the Inspector-General of Intelligence and Security Act 1986 and b the report relates wholly or partly to the purpose or manner of access to retained data by means of one or more authorisations under Division 3 of Part 4-1 of this Act the Minister must as soon as practicable cause a copy of the report to be given to the Parliamentary Joint Committee on Intelligence and Security 3 4 5 6 7 8 9 10 11 12 2 The Parliamentary Joint Committee on Intelligence and Security may request a briefing from the Inspector-General on the authorisation or authorisations 13 14 15 Australian Federal Police 16 3 If a the Ombudsman gives to the Minister a report under section 186J of this Act and b the report relates wholly or partly to the purpose or manner of access to retained data by means of one or more authorisations under Division 4 or 4A of Part 4-1 of this Act and c the authorisation or authorisations were made by one or more authorised officers of the Australian Federal Police the Minister must as soon as practicable cause a copy of the report to be given to the Parliamentary Joint Committee on Intelligence and Security 17 18 19 20 21 22 23 24 25 26 27 28 4 The Parliamentary Joint Committee on Intelligence and Security may request a briefing from the Ombudsman on the authorisation or authorisations 29 30 31 32 6Y At the end of subsection 186 1 Add 33 50 Telecommunications Interception and Access Amendment Data Retention Bill 2015 No 2015 Data retention Schedule 1 Other amendments Part 2 and e the offences and other matters for which authorised officers of the agency made authorisations under sections 178 178A 179 and 180 during that year and f the lengths of time for which the information or documents that were covered by those authorisations had been held when the authorisations were made and g the number of occasions during that year on which authorised officers of the agency made authorisations relating to retained data that included information of a kind referred to in item 1 of the table in subsection 187AA 1 and h the number of occasions during that year on which authorised officers of the agency made authorisations relating to retained data that included information of a kind referred to in item 2 3 4 5 or 6 of the table in subsection 187AA 1 and i the number of authorisations referred to in paragraph e of this subsection that were made under journalist information warrants issued to the agency under Subdivision C of Division 4C of Part 4-1 and j the number of journalist information warrants issued to the agency under that Subdivision during the period and k information of a kind declared under subsection 1E of this section 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 6Z After subsection 186 1 Insert 25 1A The report under subsection 1 is to set out the offences and other matters referred to in paragraph 1 e by means of the categories declared under subsection 1B 26 27 28 1B The Minister may by legislative instrument declare categories of offences and other matters into which the offences and other matters are to be divided for the purposes of paragraph 1 e 29 30 31 1C The report under subsection 1 is to set out the matters referred to in paragraph 1 f by specifying a in relation to each of 8 successive periods of 3 months the number of the authorisations made for information or 32 33 34 35 No 2015 Telecommunications Interception and Access Amendment Data Retention Bill 2015 51 Schedule 1 Data retention Part 2 Other amendments documents held for lengths of time included in that period and b the number of the authorisations made for information or documents held for lengths of time exceeding 24 months 1 2 3 4 1D For the purposes of paragraph 1 f disregard any authorisations under subsection 180 2 except to the extent that they include authorisations under subsection 180 3 5 6 7 1E The Minister may by legislative instrument declare kinds of information that are to be set out in the report under subsection 1 8 9 52 Telecommunications Interception and Access Amendment Data Retention Bill 2015 No 2015 Data retention Schedule 1 Application provisions Part 3 1 Part 3—Application provisions 2 7 Existing information and documents 3 1 The amendments made by this Schedule apply in relation to information or a document a that is of a kind referred to in paragraph 187A 1 a or b of the Telecommunications Interception and Access Act 1979 as amended by this Act and b that a service provider was keeping or causing to be kept immediately before the commencement of this item and c in relation to which a period specified in section 187C of that Act as so amended had not expired before that commencement 2 However this item does not require a service provider to create or to have created any information or document that was not created by the operation before that commencement of a service to which Part 5-1A of that Act as so amended applies 4 5 6 7 8 9 10 11 12 13 14 15 16 17 8 Reducing the period for keeping information or documents 18 1 A service provider must not before the commencement Part 5-1A of the Telecommunications Interception and Access Act 1979 as amended by this Act reduce the period for which it keeps or causes to be kept any information or document that the service provider will after that commencement be required by that Part to keep or cause to be kept 2 This item is taken to be a civil penalty provision for the purposes of the Telecommunications Act 1997 as if it had been so declared by a provision of that Act 19 20 21 22 23 24 25 26 9 Applications made before commencement of Part 5-1A 27 1 28 29 30 31 No At any time after this Act receives the Royal Assent a service provider may apply for either or both of the following a approval of i a data retention implementation plan or ii an amendment of a data retention implementation plan 2015 Telecommunications Interception and Access Amendment Data Retention Bill 2015 53 Schedule 1 Data retention Part 3 Application provisions under Division 2 of Part 5-1A of the Telecommunications Interception and Access Act 1979 as amended by this Act b a decision under subsection 187K 1 or 187KA 2 of that Act as so amended 1 2 3 4 5 2 6 7 8 9 Paragraph 1 a of this item does not apply to an application for approval of a data retention implementation plan unless the application would if made after the commencement of Part 5-1A of that Act as so amended have complied with section 187E of that Act as so amended 10 Decisions made before commencement of Part 5-1A 1 To avoid doubt the power to make a decision under section 187F 187G 187J 187K or 187KA of the Telecommunications Interception and Access Act 1979 as amended by this Act is taken for the purposes of section 4 of the Acts Interpretation Act 1901 to be a power to make an instrument of an administrative character 2 Subsection 187F 3 of the Telecommunications Interception and Access Act 1979 as amended by this Act applies in relation to an application made before the commencement of Part 5-1A of that Act as so amended for approval of a data retention implementation plan as if references in that subsection to 60 days were references to the number of days provided for in subitem 4 of this item 3 Paragraph 187K 5 b of the Telecommunications Interception and Access Act 1979 as amended by this Act applies in relation to an application made before the commencement of Part 5-1A of that Act as so amended for a decision under subsection 187K 1 of that Act as so amended as if references in that paragraph to 60 days were references to the number of days provided for in subitem 4 of this item 4 34 For the purposes of subitem 2 or 3 the number of days is a the number of days in the period between i the day the application referred to in that subitem was made and ii the day immediately before the commencement of Part 5-1A of the Telecommunications Interception and Access Act 1979 as amended by this Act or b 60 days 35 whichever is the greater 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 54 Telecommunications Interception and Access Amendment Data Retention Bill 2015 No 2015 Data retention Schedule 1 Application provisions Part 3 1 2 11 Keeping information or documents before commencement of Part 5-1A A service provider may before the commencement of this item keep or cause to be kept any information or document that after that commencement Part 5-1A of the Telecommunications Interception and Access Act 1979 as amended by this Act will require the service provider to keep or cause to be kept 3 4 5 6 7 8 12 First reporting period after commencement of Part 5-1A 9 1 The annual report referred to in subsection 94 1 of the Australian Security Intelligence Organisation Act 1979 for the period during which Part 5-1A commenced is to include a statement of the matters referred to in paragraphs 94 2A c to j of that Act as amended by this Act only to the extent that the matters relate to the part of that period occurring after Part 5-1A commenced 2 A report under section 186 of the Telecommunications Interception and Access Act 1979 as amended by this Act for the period during which Part 5-1A commenced is to include a statement of the matters referred to in paragraphs 186 1 e to k of that Act as so amended only to the extent that the matters relate to the part of that period occurring after Part 5-1A commenced 3 In this item 10 11 12 13 14 15 16 17 18 19 20 21 Part 5-1A means Part 5-1A of the Telecommunications Interception and Access Act 1979 as amended by this Act 22 23 No 2015 Telecommunications Interception and Access Amendment Data Retention Bill 2015 55 Schedule 2 Restricting access to stored communications and telecommunications data Part 1 Main amendments 3 Schedule 2—Restricting access to stored communications and telecommunications data 4 Part 1—Main amendments 5 Telecommunications Interception and Access Act 1979 6 1 Subparagraphs 107J 1 a i and ii 1 2 Omit “an enforcement agency” substitute “a criminal law-enforcement agency” 7 8 9 2 Subsection 110 1 Omit “An enforcement agency” substitute “A criminal law-enforcement agency” 10 11 12 3 After section 110 Insert 13 14 110A Meaning of criminal law-enforcement agency 1 Each of the following is a criminal law-enforcement agency a the Australian Federal Police b a Police Force of a State c the Australian Commission for Law Enforcement Integrity d the ACC e the Australian Customs and Border Protection Service ea the Australian Securities and Investments Commission eb the Australian Competition and Consumer Commission f the Crime Commission g the Independent Commission Against Corruption h the Police Integrity Commission i the IBAC j the Crime and Corruption Commission of Queensland k the Corruption and Crime Commission 15 16 17 18 19 20 21 22 23 24 25 26 27 28 56 Telecommunications Interception and Access Amendment Data Retention Bill 2015 No 2015 Restricting access to stored communications and telecommunications data Schedule 2 Main amendments Part 1 l the Independent Commissioner Against Corruption m subject to subsection 7 an authority or body for which a declaration under subsection 3 is in force 1 2 3 2 The head of an authority or body may request the Minister to declare the authority or body to be a criminal law-enforcement agency 4 5 6 3 The Minister may by legislative instrument declare a an authority or body to be a criminal law-enforcement agency and b persons specified or of a kind specified in the declaration to be officers of the criminal law-enforcement agency for the purposes of this Act 7 8 9 10 11 12 3A The Minister may make the declaration whether or not the head of the authority or body has made a request under subsection 2 13 14 3B The Minister must not make the declaration unless the Minister is satisfied on reasonable grounds that the functions of the authority or body include investigating serious contraventions 15 16 17 4 In considering whether to make the declaration the Minister must have regard to b whether access to stored communications and the making of authorisations under section 180 would be reasonably likely to assist the authority or body in investigating serious contraventions and c whether the authority or body i is required to comply with the Australian Privacy Principles or ii is required to comply with a binding scheme that provides protection of personal information that meets the requirements of subsection 4A or iii has agreed in writing to comply with a scheme providing such protection of personal information in relation to personal information disclosed to it under Chapter 3 or 4 if the declaration is made and d whether the authority or body proposes to adopt processes and practices that would ensure its compliance with the obligations of a criminal law-enforcement agency under 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 No 2015 Telecommunications Interception and Access Amendment Data Retention Bill 2015 57 Schedule 2 Restricting access to stored communications and telecommunications data Part 1 Main amendments Chapter 3 and the obligations of an enforcement agency under Chapter 4 and e whether the Minister considers that the declaration would be in the public interest and f any other matter that the Minister considers relevant 1 2 3 4 5 4A For the purposes of subparagraphs 4 c ii and iii the protection of personal information provided by the scheme must a be comparable to the protection provided by the Australian Privacy Principles and b include a mechanism for monitoring the authority’s or body’s compliance with the scheme and c include a mechanism that enables an individual to seek recourse if his or her personal information is mishandled 6 7 8 9 10 11 12 13 17 5 In considering whether to make the declaration the Minister may consult such persons or bodies as the Minister thinks fit In particular the Minister may consult the Privacy Commissioner and the Ombudsman 18 6 The declaration may be subject to conditions 19 7 Without limiting subsection 6 a condition may provide that the authority or body is not to exercise a a power conferred on a criminal law-enforcement agency by or under a specified provision in Chapter 3 or b a power conferred on an enforcement agency by or under a specified provision in Chapter 4 The authority or body is taken for the purposes of this Act not to be a criminal law-enforcement agency for the purposes of that provision in Chapter 3 or an enforcement agency for the purposes of that provision in Chapter 4 as the case requires 14 15 16 20 21 22 23 24 25 26 27 28 8 The Minister may by legislative instrument revoke a declaration under subsection 3 relating to an authority or body if the Minister is no longer satisfied that the circumstances justify the declaration remaining in force 29 30 31 32 9 The revocation under subsection 8 of a declaration relating to an authority or body does not affect the validity of 33 34 58 Telecommunications Interception and Access Amendment Data Retention Bill 2015 No 2015 Restricting access to stored communications and telecommunications data Schedule 2 Main amendments Part 1 a a domestic preservation notice given by the authority or body or b a stored communications warrant issued to the authority or body or c an authorisation made by an authorised officer of the authority or body under Division 4 of Part 4-1 that was in force immediately before the revocation took effect 1 2 3 4 5 6 7 10 A declaration under subsection 3 a comes into force when it is made or on such later day as is specified in the declaration and b ceases to be in force at the end of the period of 40 sitting days of a House of the Parliament after the declaration comes into force 8 9 10 11 12 13 11 If a Bill is introduced into either House of the Parliament that includes an amendment of subsection 1 the Minister a must refer the amendment to the Parliamentary Joint Committee on Intelligence and Security for review and b must not in that referral specify as the period within which the Committee is to report on its review a period that will end earlier than 15 sitting days of a House of the Parliament after the introduction of the Bill 14 15 16 17 18 19 20 21 22 4 Before section 177 Insert 23 24 176A Meaning of enforcement agency 1 Each of the following is an enforcement agency a subject to subsection 110A 7 a criminal law-enforcement agency b subject to subsection 7 an authority or body for which a declaration under subsection 3 is in force 25 26 27 28 29 2 The head of an authority or body may request the Minister to declare the authority or body to be an enforcement agency 30 31 3 The Minister may by legislative instrument declare a an authority or body to be an enforcement agency and 32 33 No 2015 Telecommunications Interception and Access Amendment Data Retention Bill 2015 59 Schedule 2 Restricting access to stored communications and telecommunications data Part 1 Main amendments b persons specified or of a kind specified in the declaration to be officers of the enforcement agency for the purposes of this Act 1 2 3 3A The Minister may make the declaration whether or not the head of the authority or body has made a request under subsection 2 4 5 3B The Minister must not make the declaration unless the Minister is satisfied on reasonable grounds that the functions of the authority or body include a enforcement of the criminal law or b administering a law imposing a pecuniary penalty or c administering a law relating to the protection of the public revenue 6 7 8 9 10 11 12 4 In considering whether to make the declaration the Minister must have regard to b whether the making of authorisations under section 178 or 179 would be reasonably likely to assist the authority or body in performing the functions referred to in subsection 3B and c whether the authority or body i is required to comply with the Australian Privacy Principles or ii is required to comply with a binding scheme that provides protection of personal information that meets the requirements of subsection 4A or iii has agreed in writing to comply with a scheme providing such protection of personal information in relation to personal information disclosed to it under Chapter 4 if the declaration is made and d whether the authority or body proposes to adopt processes and practices that would ensure its compliance with the obligations of an enforcement agency under Chapter 4 and e whether the Minister considers that the declaration would be in the public interest and f any other matter that the Minister considers relevant 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 4A For the purposes of subparagraphs 4 c ii and iii the protection of personal information provided by the scheme must 35 36 60 Telecommunications Interception and Access Amendment Data Retention Bill 2015 No 2015 Restricting access to stored communications and telecommunications data Schedule 2 Main amendments Part 1 a be comparable to the protection provided by the Australian Privacy Principles and b include a mechanism for monitoring the authority’s or body’s compliance with the scheme and c include a mechanism that enables an individual to seek recourse if his or her personal information is mishandled 1 2 3 4 5 6 10 5 In considering whether to make the declaration the Minister may consult such persons or bodies as the Minister thinks fit In particular the Minister may consult the Privacy Commissioner and the Ombudsman 11 6 The declaration may be subject to conditions 12 7 Without limiting subsection 6 a condition may provide that the authority or body is not to exercise a power conferred on an enforcement agency by or under a specified provision in Chapter 4 The authority or body is taken for the purposes of this Act not to be an enforcement agency for the purposes of that provision 7 8 9 13 14 15 16 8 The Minister may by legislative instrument revoke a declaration under subsection 3 relating to an authority or body if the Minister is no longer satisfied that the circumstances justify the declaration remaining in force 17 18 19 20 9 The revocation under subsection 8 of a declaration relating to an authority or body does not affect the validity of an authorisation made by an authorised officer of the authority or body under this Division that was in force immediately before the revocation took effect 21 22 23 24 25 10 A declaration under subsection 3 a comes into force when it is made or on such later day as is specified in the declaration and b ceases to be in force at the end of the period of 40 sitting days of a House of the Parliament after the declaration comes into force 26 27 28 29 30 31 11 If a Bill is introduced into either House of the Parliament that includes an amendment of subsection 1 the Minister a must refer the amendment to the Parliamentary Joint Committee on Intelligence and Security for review and 32 33 34 35 No 2015 Telecommunications Interception and Access Amendment Data Retention Bill 2015 61 Schedule 2 Restricting access to stored communications and telecommunications data Part 1 Main amendments b must not in that referral specify as the period within which the Committee is to report on its review a period that will end earlier than 15 sitting days of a House of the Parliament after the introduction of the Bill 1 2 3 4 62 Telecommunications Interception and Access Amendment Data Retention Bill 2015 No 2015 Restricting access to stored communications and telecommunications data Schedule 2 Other amendments Part 2 1 Part 2—Other amendments 2 Telecommunications Interception and Access Act 1979 3 4 5 Subsection 5 1 definition of Crime and Misconduct Commission Omit “Misconduct” substitute “Corruption” 5 6 7 6 Subsection 5 1 definition of criminal law-enforcement agency Repeal the definition substitute 8 criminal law-enforcement agency has the meaning given by section 110A 9 10 11 7 Subsection 5 1 definition of enforcement agency Repeal the definition substitute 12 enforcement agency has the meaning given by section 176A 13 14 8 Subsection 5 1 at the end of the definition of officer Add or n in the case of a criminal law-enforcement agency for which a declaration under subsection 110A 3 is in force—a person specified or of a kind specified in the declaration to be an officer of the criminal law-enforcement agency for the purposes of this Act or o in the case of an enforcement agency for which a declaration under subsection 176A 3 is in force—a person specified or of a kind specified in the declaration to be an officer of the enforcement agency for the purposes of this Act 15 16 17 18 19 20 21 22 23 24 25 9 Section 107G Omit “an enforcement agency or the Organisation” substitute “a criminal law-enforcement agency or the Organisation ” 26 27 No 2015 Telecommunications Interception and Access Amendment Data Retention Bill 2015 63 Schedule 2 Restricting access to stored communications and telecommunications data Part 2 Other amendments 1 10 Section 107G Omit “an interception agency or the Organisation” substitute “a criminal law-enforcement agency that is an interception agency or the Organisation ” 2 3 4 5 11 Subsection 107J 1 heading Repeal the heading substitute 6 Notices given by criminal law-enforcement agencies 7 8 12 Paragraphs 107L 2 a 107M 1 a 2 a and 3 a Omit “an enforcement agency” substitute “a criminal law-enforcement agency” 9 10 11 13 Part 3-3 heading Repeal the heading substitute 12 14 Part 3-3—Access by criminal law-enforcement agencies to stored communications 15 14 Section 110 heading 13 Repeal the heading substitute 16 18 110 Criminal law-enforcement agencies may apply for stored communications warrants 19 15 Subsections 111 3 and 116 1 17 Omit “an enforcement agency” substitute “a criminal law-enforcement agency” 20 21 22 16 Subparagraph 120 1 a i Omit “enforcement agency” substitute “criminal law-enforcement agency” 23 24 25 17 Subsection 120 2 Omit “an enforcement agency’s” substitute “a criminal law-enforcement agency’s” 26 27 64 Telecommunications Interception and Access Amendment Data Retention Bill 2015 No 2015 Restricting access to stored communications and telecommunications data Schedule 2 Other amendments Part 2 1 18 Subparagraph 120 2 b ii Omit “enforcement agency” substitute “criminal law-enforcement agency” 2 3 4 19 Paragraph 120 3 a Omit “enforcement agency’s” substitute “criminal law-enforcement agency’s” 5 6 7 20 Paragraph 120 3 a Omit “enforcement agency” substitute “criminal law-enforcement agency” 8 9 10 21 Subsection 120 4 Omit “enforcement agency” substitute “criminal law-enforcement agency” 11 12 13 22 Subsection 122 1 Omit “an enforcement agency” substitute “a criminal law-enforcement agency” 14 15 16 23 Paragraph 122 1 a Omit “enforcement agency” substitute “criminal law-enforcement agency” 17 18 19 24 Subsection 122 2 Omit “an enforcement agency” substitute “a criminal law-enforcement agency” 20 21 22 25 Subsection 122 2 Omit “other enforcement agency” substitute “other criminal law-enforcement agency” 23 24 25 26 Subsection 122 3 Omit “an enforcement agency” substitute “a criminal law-enforcement agency” 26 27 No 2015 Telecommunications Interception and Access Amendment Data Retention Bill 2015 65 Schedule 2 Restricting access to stored communications and telecommunications data Part 2 Other amendments 1 27 Subsection 123 1 Omit “an enforcement agency” substitute “a criminal law-enforcement agency” 2 3 4 28 Subsection 123 1 Omit “other enforcement agency” substitute “other criminal law-enforcement agency” 5 6 7 29 Subsection 123 2 Omit “enforcement agency” substitute “criminal law-enforcement agency” 8 9 10 30 Subsection 127 2 Omit “an enforcement agency” wherever occurring substitute “a criminal law-enforcement agency” 11 12 13 31 Paragraphs 127 2 a and b Omit “enforcement agency” substitute “criminal law-enforcement agency” 14 15 16 32 Subsections 127 3 and 128 1 Omit “an enforcement agency” substitute “a criminal law-enforcement agency” 17 18 19 33 Subsection 128 3 Omit “an enforcement agency” wherever occurring substitute “a criminal law-enforcement agency” 20 21 22 34 Section 130 heading Repeal the heading substitute 23 25 130 Evidentiary certificates relating to actions by criminal law-enforcement agencies 26 35 Subsections 130 1 and 2 24 Omit “an enforcement agency” substitute “a criminal law-enforcement agency” 27 28 66 Telecommunications Interception and Access Amendment Data Retention Bill 2015 No 2015 Restricting access to stored communications and telecommunications data Schedule 2 Other amendments Part 2 1 36 Section 131 Omit “an enforcement agency” substitute “a criminal law-enforcement agency” 2 3 4 37 Subsection 135 1 heading Repeal the heading substitute 5 Communicating information to the appropriate criminal law-enforcement agency 6 7 8 38 Paragraph 135 1 a Omit “enforcement agency” substitute “criminal law-enforcement agency” 9 10 11 39 Subsection 135 2 Omit “an enforcement agency” substitute “a criminal law-enforcement agency” 12 13 14 40 Section 138 heading Repeal the heading substitute 15 17 138 Employee of carrier may communicate information to criminal law-enforcement agency 18 41 Subsection 138 2 16 Omit “enforcement agency” substitute “criminal law-enforcement agency” 19 20 21 42 Subsection 139 1 Omit “an enforcement agency” substitute “a criminal law-enforcement agency” 22 23 24 43 Paragraph 139 2 a Omit “enforcement agency” substitute “criminal law-enforcement agency” 25 26 No 2015 Telecommunications Interception and Access Amendment Data Retention Bill 2015 67 Schedule 2 Restricting access to stored communications and telecommunications data Part 2 Other amendments 1 44 Paragraph 150 1 a Omit “an enforcement agency’s” substitute “a criminal law-enforcement agency’s” 2 3 4 45 Subsections 159 1 and 160 1 Omit “an enforcement agency” substitute “a criminal law-enforcement agency” 5 6 7 46 Subsections 161A 1 and 2 and 162 1 Omit “enforcement agency” substitute “criminal law-enforcement agency” 8 9 10 47 Section 163 Omit “enforcement agency” substitute “criminal law-enforcement agency” 11 12 68 Telecommunications Interception and Access Amendment Data Retention Bill 2015 No 2015 Restricting access to stored communications and telecommunications data Schedule 2 Application provisions Part 3 1 Part 3—Application provisions 2 48 Existing domestic preservation notices If 3 a a domestic preservation notice was given to a carrier before the commencement of this Schedule and b the notice was in force immediately before that commencement and c the authority or body that gave the notice was not the Organisation and d on that commencement the authority or body is not a criminal law-enforcement agency whether or not it is an enforcement agency 4 5 6 7 8 9 10 11 12 after that commencement the notice continues in force and Chapter 3 of the Telecommunications Interception and Access Act 1979 as amended by this Act continues to apply in relation to the notice as if the authority or body were a criminal law-enforcement agency 13 14 15 16 17 49 Existing stored communications warrants If 18 a a stored communications warrant was issued to an authority or body before the commencement of this Schedule and b the warrant was in force immediately before that commencement and c on that commencement the authority or body is not a criminal law-enforcement agency whether or not it is an enforcement agency 19 20 21 22 23 24 25 after that commencement the warrant continues in force and Chapter 3 of the Telecommunications Interception and Access Act 1979 as amended by this Act continues to apply in relation to the warrant as if the authority or body were a criminal law-enforcement agency 26 27 28 29 30 50 Existing authorisations If 31 a an authority or body made an authorisation under Division 4 of Part 4-1 of the Telecommunications Interception and 32 33 No 2015 Telecommunications Interception and Access Amendment Data Retention Bill 2015 69 Schedule 2 Restricting access to stored communications and telecommunications data Part 3 Application provisions Access Act 1979 before the commencement of this Schedule and b the authorisation was in force immediately before that commencement and c on that commencement the authority or body is not an enforcement agency 1 2 3 4 5 6 after that commencement the authorisation continues in force and Chapter 4 of the Telecommunications Interception and Access Act 1979 as amended by this Act continues to apply in relation to the authorisation as if the authority or body were an enforcement agency 7 8 9 10 11 51 Evidentiary certificates 12 1 If a an authority or body issued a certificate under section 107U or 130 of the Telecommunications Interception and Access Act 1979 before the commencement of this Schedule and b on that commencement the authority or body is not a criminal law-enforcement agency whether or not it is an enforcement agency 13 14 15 16 17 18 after that commencement the certificate continues in force as if the authority or body were a criminal law-enforcement agency 19 20 21 2 a an authority or body issued a certificate under section 185C of the Telecommunications Interception and Access Act 1979 before the commencement of this Schedule and b on that commencement the authority or body is not an enforcement agency 22 23 24 25 26 after that commencement the certificate continues in force as if the authority or body were an enforcement agency 27 28 29 If 3 30 31 32 33 70 An authority or body that a was a criminal law-enforcement agency immediately before the commencement of this Schedule and b on that commencement is not a criminal law-enforcement agency whether or not it is an enforcement agency Telecommunications Interception and Access Amendment Data Retention Bill 2015 No 2015 Restricting access to stored communications and telecommunications data Schedule 2 Application provisions Part 3 continues after that commencement to have the power to issue certificates under section 107U or 130 of the Telecommunications Interception and Access Act 1979 as amended by this Act with respect to anything done before that commencement as if it were a criminal law-enforcement agency 1 2 3 4 5 6 4 7 8 9 An authority or body that a was an enforcement agency immediately before the commencement of this Schedule and b on that commencement is not an enforcement agency continues after that commencement to have the power to issue certificates under section 185C of the Telecommunications Interception and Access Act 1979 as amended by this Act with respect to anything done before that commencement as if it were an enforcement agency 10 11 12 13 No 2015 Telecommunications Interception and Access Amendment Data Retention Bill 2015 71 Schedule 3 Oversight by the Commonwealth Ombudsman Part 1 Amendments 2 Schedule 3—Oversight by the Commonwealth Ombudsman 3 Part 1—Amendments 4 Telecommunications Interception and Access Act 1979 5 1 Subsection 5C 1 1 Omit “or 3-5” substitute “or Chapter 4A” 6 7 2 At the end of section 87 Add 8 6 A person must not refuse a to attend before a person or b to give information or c to answer questions when required to do so under this section 9 10 11 12 13 Penalty for an offence against this subsection for 6 months 14 15 16 3 Section 134 After “or 3-6” insert “or Chapter 4A” 17 18 Imprisonment 4 Part 3-5 heading Repeal the heading substitute 19 20 Part 3-5—Keeping and inspection of records 21 5 Divisions 1 and 2 of Part 3-5 Repeal the Divisions substitute 22 72 Telecommunications Interception and Access Amendment Data Retention Bill 2015 No 2015 Oversight by the Commonwealth Ombudsman Schedule 3 Amendments Part 1 1 Division 1—Obligation to keep records 2 151 Obligation to keep records 1 The chief officer of a criminal law-enforcement agency must cause the following or copies of the following to be kept in the agency’s records for the period specified in subsection 3 a each preservation notice given by the agency and documents or other materials that indicate whether the notice was properly given b each notice under subsection 107L 3 of the revocation of such a preservation notice and documents or other materials that indicate whether the revocation was properly made c each stored communications warrant issued to the agency and documents or other materials that indicate whether the warrant was properly applied for including i a copy of each application for such a warrant and ii a copy of each affidavit supporting such an application and iii documents or other materials that indicate whether the applicant for such a warrant complied with the requirements of Division 1 of Part 3-3 d each instrument revoking such a warrant under section 122 and documents or other materials that indicate whether the revocation was properly made e documents or other materials that indicate the persons approved under subsection 127 2 and the persons appointed under subsection 127 3 to be approving officers for the purposes of subsection 127 2 f each authorisation by the chief officer under subsection 135 2 g each request for mutual assistance being a request to which a mutual assistance application relates and documents or other materials that indicate i whether the request was made lawfully or ii the offence in relation to which the request was made h documents or other materials that indicate whether the communication use or recording of lawfully accessed 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 No 2015 Telecommunications Interception and Access Amendment Data Retention Bill 2015 73 Schedule 3 Oversight by the Commonwealth Ombudsman Part 1 Amendments 1 2 3 4 i 5 6 j k 7 8 9 l 10 11 2 The Minister may by legislative instrument prescribe kinds of documents and other materials that the chief officer of a criminal law-enforcement agency must cause to be kept in the agency’s records 12 13 14 15 3 The period for which the chief officer of a criminal law-enforcement agency must cause a particular item to be kept in the agency’s records under subsection 1 of this section is the period a starting when the item came into existence and b ending i when 3 years have elapsed since the item came into existence or ii when the Ombudsman gives a report to the Minister under section 186J that is about records that include the item whichever happens earlier 16 17 18 19 20 21 22 23 24 25 26 27 28 6 At the end of Part 4-2 Add 29 30 information other than foreign intelligence information preservation notice information or stored communication warrant information complied with the requirements of Division 2 of Part 3-4 documents indicating whether information or a record was destroyed in accordance with section 150 each evidentiary certificate issued under this Chapter each report given to the Minister under Division 1 of Part 3-6 documents and other materials of a kind prescribed under subsection 2 of this section 186A Obligation to keep records 1 The chief officer of an enforcement agency must cause the following or copies of the following to be kept in the agency’s records for the period specified in subsection 3 31 32 33 74 Telecommunications Interception and Access Amendment Data Retention Bill 2015 No 2015 Oversight by the Commonwealth Ombudsman Schedule 3 Amendments Part 1 a each authorisation made by an authorised officer of the agency under section 178 178A 179 or 180 and documents or other materials that indicate any of the following i whether the authorisation was properly made including whether the authorised officer took into account the matters referred to in subsection 178 3 178A 3 179 3 or 180 4 as the case requires the matters referred to in section 180F and all other relevant considerations ii if the authorisation is made under section 180—the period during which the authorisation is in force iii when the authorisation was notified under subsection 184 3 b each notice of the revocation under subsection 180 7 of an authorisation under section 180 and documents or other materials that indicate any of the following i whether the revocation was properly made ii when the revocation was notified under subsection 184 4 c if the agency is the Australian Federal Police—each authorisation made by an authorised officer of the Australian Federal Police under section 180A or 180B and documents or other materials that indicate any of the following i whether the authorisation was properly made including whether the authorised officer took into account the matters referred to in subsection 180A 3 or 5 180B 3 or 8 or 180E 1 as the case requires the matters referred to in section 180F and all other relevant considerations ii if the authorisation is made under section 180B—the period during which the authorisation is in force iii if the authorisation is made under subsection 180B 8 — whether the authorised officer was satisfied as to the matters referred to in paragraphs 180B 8 a and b iv when the authorisation was notified under subsection 184 5 d if the agency is the Australian Federal Police—each notice of the extension under subsection 180B 6 of an authorisation 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 No 2015 Telecommunications Interception and Access Amendment Data Retention Bill 2015 75 Schedule 3 Oversight by the Commonwealth Ombudsman Part 1 Amendments 1 2 3 4 5 e 6 7 8 9 10 11 12 f 13 14 15 16 17 18 19 20 21 22 g 23 24 25 26 27 28 29 30 31 32 33 h i j 34 35 36 37 76 under section 180B and documents or other materials that indicate any of the following i whether the extension was properly made ii when the extension was notified under subsection 184 5 if the agency is the Australian Federal Police—each notice of the revocation under subsection 180B 4 of an authorisation under section 180B and documents or other materials that indicate any of the following i whether the revocation was properly made ii when the revocation was notified under subsection 184 6 if the agency is the Australian Federal Police—each authorisation made by an authorised officer of the Australian Federal Police under section 180C or 180D and documents or other materials that indicate whether the authorisation was properly made including whether the authorised officer took into account i the matters referred to in subsection 180C 2 180D 2 or 180E 1 as the case requires and ii the matters referred to in section 180F and iii all other relevant considerations documents or other materials that indicate whether i a disclosure of information or a document to which subsection 181B 1 or 2 applies took place in circumstances referred to in subsection 181B 3 or ii a use of information or a document to which subsection 181B 4 or 5 applies took place in circumstances referred to in subsection 181B 6 or iii a disclosure or use of information or a document to which subsection 182 1 applies took place in circumstances referred to in subsection 182 2 2A 3 4 or 4A each evidentiary certificate issued under section 185C each report given to the Minister under section 186 documents and other materials of a kind prescribed under subsection 2 of this section Telecommunications Interception and Access Amendment Data Retention Bill 2015 No 2015 Oversight by the Commonwealth Ombudsman Schedule 3 Amendments Part 1 2 The Minister may by legislative instrument prescribe kinds of documents and other materials that the chief officer of an enforcement agency must cause to be kept in the agency’s records 1 2 3 14 3 The period for which the chief officer of an enforcement agency must cause a particular item to be kept in the agency’s records under subsection 1 of this section is the period a starting when the item came into existence and b ending i when 3 years have elapsed since the item came into existence or ii when the Ombudsman gives a report to the Minister under section 186J that is about records that include the item whichever happens earlier 15 4 Subsection 3 does not affect the operation of section 185 4 5 6 7 8 9 10 11 12 13 16 7 Before Chapter 5 Insert 17 18 19 20 21 22 Chapter 4A—Oversight by the Commonwealth Ombudsman 186B Inspection of records 1 The Ombudsman must inspect records of an enforcement agency to determine a the extent of compliance with Chapter 4 by the agency and its officers and b if the agency is a criminal law-enforcement agency—the extent of compliance with Chapter 3 by the agency and its officers 23 24 25 26 27 28 29 2 For the purpose of an inspection under this section the Ombudsman a after notifying the chief officer of the agency may enter at any reasonable time premises occupied by the agency and 30 31 32 33 No 2015 Telecommunications Interception and Access Amendment Data Retention Bill 2015 77 Schedule 3 Oversight by the Commonwealth Ombudsman Part 1 Amendments b is entitled to have full and free access at all reasonable times to all records of the agency that are relevant to the inspection and c despite any other law is entitled to make copies of and to take extracts from records of the agency and d may require a member of staff of the agency to give the Ombudsman any information that the Ombudsman considers necessary being information i that is in the member’s possession or to which the member has access and ii that is relevant to the inspection 1 2 3 4 5 6 7 8 9 10 11 3 Before inspecting records of an enforcement agency under this section the Ombudsman must give reasonable notice to the chief officer of the agency of when the inspection will occur 12 13 14 4 The chief officer must ensure that members of staff of the agency give the Ombudsman any assistance the Ombudsman reasonably requires to enable the Ombudsman to perform functions under this section 15 16 17 18 5 To avoid doubt subsection 1 does not require the Ombudsman to inspect all of the records of an enforcement agency that are relevant to the matters referred to in paragraphs 1 a and b 19 20 21 6 While an operation is being conducted under a a stored communications warrant or b an authorisation under Division 3 4 or 4A of Part 4-1 the Ombudsman may refrain from inspecting any records of the agency concerned that are relevant to the obtaining or execution of the warrant or authorisation 22 23 24 25 26 27 28 186C Power to obtain relevant information 1 If the Ombudsman has reasonable grounds to believe that an officer of a particular enforcement agency is able to give information relevant to an inspection under this Chapter of the agency’s records the Ombudsman may 29 30 31 32 78 Telecommunications Interception and Access Amendment Data Retention Bill 2015 No 2015 Oversight by the Commonwealth Ombudsman Schedule 3 Amendments Part 1 a if the Ombudsman knows the officer’s identity—by writing given to the officer require the officer to do one or both of the following i give the information to the Ombudsman by writing signed by the officer at a specified place and within a specified period ii attend before a specified inspecting officer to answer questions relevant to the inspection or b if the Ombudsman does not know the officer’s identity— require the chief officer of the agency or a person nominated by the chief officer to attend before a specified inspecting officer to answer questions relevant to the inspection 1 2 3 4 5 6 7 8 9 10 11 12 2 A requirement under subsection 1 to attend before an inspecting officer must specify a a place for the attendance and b a period within which or a time and day when the attendance is to occur The place and the period or the time and day must be reasonable having regard to the circumstances in which the requirement is made 13 14 15 16 17 18 19 20 3 A person must not refuse a to attend before a person or b to give information or c to answer questions when required to do so under this section 21 22 23 24 25 Penalty for an offence against this subsection for 6 months 26 27 28 29 Imprisonment 186D Ombudsman to be given information and access despite other laws 1 Despite any other law a person is not excused from giving information answering a question or giving access to a document as and when required under this Chapter on the ground that giving the information answering the question or giving access to the document as the case may be would a contravene a law or 30 31 32 33 34 35 No 2015 Telecommunications Interception and Access Amendment Data Retention Bill 2015 79 Schedule 3 Oversight by the Commonwealth Ombudsman Part 1 Amendments b be contrary to the public interest or c might tend to incriminate the person or make the person liable to a penalty 1 2 3 2 However a the information the answer or the fact that the person has given access to the document as the case may be and b any information or thing including a document obtained as a direct or indirect consequence of giving the information answering the question or giving access to the document is not admissible in evidence against the person except in a proceeding by way of a prosecution for an offence against section 133 181A 181B or 182 or against Part 7 4 or 7 7 of the Criminal Code 4 5 6 7 8 9 10 11 12 13 3 Nothing in section 133 181A 181B or 182 or in any other law prevents an officer of an enforcement agency from a giving information to an inspecting officer whether orally or in writing and whether or not in answer to a question or b giving access to a record of the agency to an inspecting officer for the purposes of an inspection under this Chapter of the agency’s records 14 15 16 17 18 19 20 21 4 Nothing in section 133 181A 181B or 182 or in any other law prevents an officer of an enforcement agency from making a record of information or causing a record of information to be made for the purposes of giving the information to a person as permitted by subsection 3 22 23 24 25 26 27 186E Application of Ombudsman Act 1 Section 11A of the Ombudsman Act 1976 does not apply in relation to the exercise or proposed exercise of a power or the performance or the proposed performance of a function of the Ombudsman under this Chapter 28 29 30 31 2 A reference in section 19 of the Ombudsman Act 1976 to the Ombudsman’s operations does not include a reference to anything that an inspecting officer has done or omitted to do under this Chapter 32 33 34 35 80 Telecommunications Interception and Access Amendment Data Retention Bill 2015 No 2015 Oversight by the Commonwealth Ombudsman Schedule 3 Amendments Part 1 3 Subject to section 186D of this Act subsections 35 2 3 4 and 8 of the Ombudsman Act 1976 apply for the purposes of this Chapter and so apply as if a a reference in those subsections to an officer were a reference to an inspecting officer and b a reference in those subsections to information did not include a reference to lawfully accessed information or lawfully intercepted information and c a reference in those subsections to that Act were a reference to this Chapter and d paragraph 35 3 b of that Act were omitted and e section 35A of that Act had not been enacted 1 2 3 4 5 6 7 8 9 10 11 12 13 14 186F Exchange of information between Ombudsman and State inspecting authorities 1 If the Ombudsman has obtained under this Act information relating to an authority of a State or Territory the Ombudsman may give the information to another authority of that State or Territory an inspecting authority that a has powers under the law of that State or Territory and b has the function of making inspections of a similar kind to those provided for in section 186B of this Act when the inspecting authority is exercising those powers 15 16 17 18 19 20 21 22 2 However the Ombudsman may give the information only if the Ombudsman is satisfied that giving the information is necessary to enable the inspecting authority to perform its functions in relation to the authority of the State or Territory 23 24 25 26 3 The Ombudsman may receive from an inspecting authority information relevant to the performance of the Ombudsman’s functions under this Act 27 28 29 30 186G Delegation by Ombudsman 1 The Ombudsman may delegate a to an APS employee responsible to the Ombudsman or 31 32 No 2015 Telecommunications Interception and Access Amendment Data Retention Bill 2015 81 Schedule 3 Oversight by the Commonwealth Ombudsman Part 1 Amendments b to a person having similar oversight functions to the Ombudsman under the law of a State or Territory or to an employee responsible to that person all or any of the Ombudsman’s powers under this Chapter other than a power to report to the Minister 1 2 3 4 5 2 A delegate must upon request by a person affected by the exercise of any power delegated to the delegate produce the instrument of delegation or a copy of the instrument for inspection by the person 6 7 8 9 10 186H Ombudsman not to be sued The Ombudsman an inspecting officer or a person acting under an inspecting officer’s direction or authority is not liable to an action suit or proceeding for or in relation to an act done or omitted to be done in good faith in the performance or exercise or the purported performance or exercise of a function or power conferred by this Chapter 11 12 13 14 15 16 17 186J Reports 1 The Ombudsman must report to the Minister in writing about the results of inspections under section 186B of the records of agencies during a financial year 18 19 20 2 The report under subsection 1 must be given to the Minister as soon as practicable after the end of the financial year 21 22 3 The Minister must cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the Minister receives it 23 24 25 4 The Ombudsman may report to the Minister in writing at any time about the results of an inspection under this Chapter and must do so if so requested by the Minister 26 27 28 5 If as a result of an inspection under this Chapter of the records of an enforcement agency the Ombudsman is of the opinion that an officer of the agency has contravened a provision of this Act the Ombudsman may include in his or her report on the inspection a report on the contravention 29 30 31 32 33 82 Telecommunications Interception and Access Amendment Data Retention Bill 2015 No 2015 Oversight by the Commonwealth Ombudsman Schedule 3 Amendments Part 1 Note 1 2 In complying with this section the Ombudsman remains bound by the obligations imposed by sections 133 181B and 182 6 The Ombudsman must give a copy of a report under subsection 1 or 4 to the chief officer of any enforcement agency to which the report relates 3 4 5 7 A report under this section must not include information which if made public could reasonably be expected to a endanger a person’s safety or b prejudice an investigation or prosecution or c compromise any enforcement agency’s operational activities or methodologies 6 7 8 9 10 11 No 2015 Telecommunications Interception and Access Amendment Data Retention Bill 2015 83 Schedule 3 Oversight by the Commonwealth Ombudsman Part 2 Application provisions 1 Part 2—Application provisions 2 8 Existing inspections by the Ombudsman If an inspection that the Ombudsman was conducting before the commencement of this Schedule under section 152 of the Telecommunications Interception and Access Act 1979 was not finished before that commencement after that commencement a the inspection is taken to be an inspection conducted under Chapter 4A of that Act as amended by this Act and b anything done under that section in relation to the inspection before that commencement is taken to have been done under Chapter 4A of that Act as so amended 3 4 5 6 7 8 9 10 11 12 9 Reports If 13 a an inspection that the Ombudsman was conducting before the commencement of this Schedule under section 152 of the Telecommunications Interception and Access Act 1979 was finished before that commencement but b the inspection was not the dealt with before that commencement in any report to the Minister under section 153 of that Act 14 15 16 17 18 19 20 section 186J of that Act as amended by this Act applies in relation to the inspection as if it had been conducted under section 186B of that Act as so amended 21 22 23 24 10 Obligation to keep records 25 1 Sections 151 and 186A of the Telecommunications Interception and Access Act 1979 as amended by this Act do not apply in relation to anything done before the commencement of this Schedule 2 Despite the repeal of sections 150A and 151 of the Telecommunications Interception and Access Act 1979 by this Act those sections continue to apply in relation to things done before the commencement of this Schedule as if those sections had not been repealed 26 27 28 29 30 31 32 242 14 84 Telecommunications Interception and Access Amendment Data Retention Bill 2015 No 2015