Telecommunications (Interception and Access) Act

Interception and stored communications

73.9 The Telecommunications (Interception and Access) Act makes it an offence to intercept a communication passing over a telecommunications system without the knowledge of the maker of the communication, or to access a ‘stored communication’[13] without the knowledge of the sender or intended recipient of the communication.[14] There are exceptions to these general offence provisions. Most importantly, law enforcement agencies can intercept or access communications if they have obtained a warrant to do so. In addition, other individuals, such as employees of telecommunication providers, can intercept or access communications in limited circumstances.[15]

73.10 The Telecommunications (Interception and Access) Act provides for two communication interception warrant processes. Part 2.2 of the Act provides for the issuing of warrants authorising the Australian Security Intelligence Organisation (ASIO) to intercept telecommunications (ASIO warrants). ASIO warrants are issued by the Attorney-General at the request of the Director-General of Security.[16] Part 2.5 sets out a process for the issuing of warrants to agencies other than ASIO to intercept telecommunications. These agencies include Australian Government and state agencies, including a state police force and other bodies such as the Queensland Crime and Misconduct Commission.[17] These warrants (agency warrants) are issued by a judge or a nominated member of the Administrative Appeals Tribunal (AAT).[18]

73.11 The Act also sets out a warrant process for access to stored communications.[19] Whereas the interception warrant regime is limited to law enforcement agencies, applications for stored communication warrants can be made by all agencies responsible for administering a law imposing a pecuniary penalty or administration of a law relating to the protection of the public revenue. This includes the Australian Customs Service, the Australian Tax Office, and the Australian Securities and Investments Commission.[20] Warrants are issued by an ‘issuing authority’ appointed by the Attorney-General and may include judges of courts exercising federal jurisdiction, a Federal Magistrate, or a magistrate. The Attorney-General also may appoint AAT members who are legal practitioners of at least 5 years standing.[21]

73.12 The Telecommunications (Interception and Access) Act makes it an offence to record, use or disclose intercepted information, stored communication information, or information about an interception or stored communication warrant, except in certain circumstances.[22] For example, this type of information can be recorded, used or disclosed for the purpose of applying for a warrant or for investigating certain offences.[23]

73.13 The Act also contains a requirement that records of intercepted or stored communications be destroyed in certain circumstances.[24] Law enforcement agencies are obliged to keep records relating to interception and stored communication warrants,[25] and to provide the responsible Minister (currently the Attorney-General)[26] with an annual report containing information about these warrants.[27] The Minister is required to compile information received from law enforcement agencies into a report that must be tabled in Parliament.[28] Civil remedies also are available for unlawful interception of communications.[29]

Telecommunications data

73.14 Chapter 4 of the Telecommunications (Interception and Access) Act sets out when the offence provisions under ss 276, 277 and 278 of the Telecommunications Act do not prohibit the disclosing of information or documents (‘telecommunications data’) to ASIO and enforcement agencies by certain participants in the telecommunications industry (referred to in this chapter as ‘telecommunications service providers’).[30] ‘Telecommunications data’ is not defined under the Act.[31]

73.15 The Chapter sets out a two-tier access regime for ‘historical telecommunications data’ and ‘prospective telecommunications data’. Under s 176(2) of the Act, certain ASIO staff can authorise telecommunications service providers to disclose information or documents that come into existence during the period for which the authorisation is in force (prospective telecommunications data). These persons also may authorise the disclosure of information or documents that existed before the time the authorisation came into force (historical telecommunications data).[32]

73.16 The level of authorisation required for access to prospective telecommunications data is higher than that required for historical telecommunications data. Under s 175(2) and (4), the Director-General of ASIO could allow any officer or employee of ASIO to authorise access to historical telecommunications data, whereas in the case of prospective telecommunications data, authorisation is limited to Senior Executive Service (SES) Band 2 or above.[33] The authorisation commences at the time the person from whom the disclosure is sought receives notification of the authorisation, and must end within 90 days, unless revoked earlier.[34]

73.17 Sections 178 and 179 allow an authorised officer of an ‘enforcement agency’ to authorise a telecommunications service provider to disclose historical data if he or she is satisfied that the disclosure is reasonably necessary for the enforcement of the criminal law, or a law imposing a pecuniary penalty or protection of the public revenue. ‘Enforcement agencies’ include: ‘criminal law enforcement agencies’ (for example, the Australian Federal Police and state and territory police); the CrimTrac Agency; and any body whose functions include administering a law imposing a pecuniary penalty or relating to the protection of the public revenue.[35]

73.18 Section 180 allows an authorised officer of a ‘criminal law-enforcement agency’ to authorise the disclosure of prospective telecommunications data. In making the authorisation, the officer must be satisfied that the disclosure is reasonably necessary for the investigation of a Commonwealth, state or territory offence that is punishable by imprisonment for at least three years. The officer also must have regard to how much the privacy of any person or persons would be likely to be interfered with by the disclosure.[36] The authorisation period is half that allowed for ASIO investigations—45 days. [37]

[13]Telecommunications (Interception and Access) Act 1979 (Cth) ss 6, 7.

[14] Ibid s 108.

[15] See, eg, Ibid ss 7(2)(a), 108(2)(d).

[16] Ibid s 9.

[17] Ibid s 34.

[18] Ibid s 46.

[19] Ibid pt 3.

[20] Ibid s 110; Telecommunications Act 1997 (Cth) s 282.

[21]Telecommunications (Interception and Access) Act 1979 (Cth) s 6DB.

[22] Ibid pt 2.6, pt 3.4 div 2.

[23] Ibid ss 63AA, 71, 134, 140.

[24] Ibid ss 79 and 150. See discussion below.

[25] Ibid pts 2.7, 3.5.

[26] Commonwealth of Australia, Administrative Arrangements Order, 25 January 2008, sch pt 2.

[27]Telecommunications (Interception and Access) Act 1979 (Cth) pt 2.8 div 1, pt 3.6 div 1.

[28] Ibid pt 2.8 div 2, pt 3.6 div 2.

[29] Ibid pts 2.10, 3.7.

[30] These provisions are discussed in detail in Chs 71 and 72.

[31]Telecommunications (Interception and Access) Act 1979 (Cth) s 172. See discussion of the meaning of ‘telecommunications data’ below.

[32] Ibid s 176(3).

[33] The Senior Executive Service (SES) constitutes the senior management and leadership group of the Australian Public Service.

[34]Telecommunications (Interception and Access) Act 1979 (Cth) s 176(5).

[35]Ibid s 5.

[36] Ibid s 180(5).

[37] Ibid s 180(6).