An Act to prohibit the interception of, and other access to, telecommunications except where authorised in special circumstances or for the purpose of tracing the location of callers in emergencies, and for other purposes.
Chapter 1—Introduction
Part 1‑1—Preliminary
1 Short title
This Act may be cited as the Telecommunications (Interception and Access) Act 1979.
2 Commencement
This Act shall come into operation on the day on which the Australian Security Intelligence Organisation Act 1979 comes into operation.
4 Act binds the Crown
This Act binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory.
4A Application of the Criminal Code
Chapter 2 of the Criminal Code applies to all offences against this Act.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
4B Application to Norfolk Island
(1) This Act does not extend to Norfolk Island.
(2) Subsection (1) ceases to be in force when the Telecommunications Act 1992 (Norfolk Island) is repealed.
Note: Once subsection (1) ceases to be in force this Act will extend to Norfolk Island because of section 18 of the Norfolk Island Act 1979.
Part 1‑2—Interpretation
5 Interpretation
(1) In this Act, unless the contrary intention appears:
ACC means the Australian Crime Commission.
ACC Act means the Australian Crime Commission Act 2002.
access, in relation to a stored communication, has the meaning given by section 6AA. This definition does not apply to Schedule 1.
accessible, in relation to a communication, has the meaning given by section 5H.
access request has the meaning given by subsection 107P(1).
ACMA means the Australian Communications and Media Authority.
activities prejudicial to security has the same meaning as it has in the Australian Security Intelligence Organisation Act 1979.
affidavit includes affirmation.
AFP employee has the same meaning as in the Australian Federal Police Act 1979.
AFP Minister has the meaning given by section 100.1 of the Criminal Code.
agency means:
(a) except in Chapter 2—an interception agency or another enforcement agency; or
(b) in Chapter 2—an interception agency.
ancillary offence means an offence constituted by:
(a) aiding, abetting, counselling or procuring the commission of an offence;
(b) being, by act or omission, in any way, directly or indirectly, knowingly concerned in, or party to, the commission of an offence;
(c) receiving or assisting a person who is, to the offender’s knowledge, guilty of an offence, in order to enable the person to escape punishment or to dispose of the proceeds of the last‑mentioned offence;
(d) attempting or conspiring to commit an offence; or
(e) inciting, urging, aiding or encouraging, or printing or publishing any writing that incites, urges, aids or encourages, the commission of an offence or the carrying on of any operations for or by the commission of an offence.
appropriately used, in relation to a computer network that is operated by, or on behalf of, a Commonwealth agency, security authority or eligible authority of a State, has the meaning given by section 6AAA.
ASIC means the Australian Securities and Investments Commission.
ASIO affiliate has the same meaning as in the Australian Security Intelligence Organisation Act 1979.
ASIO computer access intercept information means information obtained under:
(a) an ASIO computer access warrant; or
(b) subsection 25A(8) of the Australian Security Intelligence Organisation Act 1979; or
(c) subsection 27A(3C) of the Australian Security Intelligence Organisation Act 1979; or
(d) an authorisation under section 27E of the Australian Security Intelligence Organisation Act 1979; or
(e) subsection 27E(6) of the Australian Security Intelligence Organisation Act 1979;
by intercepting a communication passing over a telecommunications system.
ASIO computer access warrant means:
(a) a warrant issued under section 25A of the Australian Security Intelligence Organisation Act 1979; or
(b) a warrant issued under section 27A of the Australian Security Intelligence Organisation Act 1979 that authorises the Organisation to do any of the acts or things referred to in subsection 25A(4) or (8) of that Act; or
(c) an authorisation under section 27E of the Australian Security Intelligence Organisation Act 1979.
ASIO employee has the same meaning as in the Australian Security Intelligence Organisation Act 1979.
associate, with a criminal organisation or a member of such an organisation, includes:
(a) be in the company of the organisation or member; and
(b) communicate with the organisation or member by any means (including by post, fax, telephone, or by email or other electronic means).
Attorney‑General’s Department means the Department administered by the Attorney‑General.
Australian Capital Territory includes the Jervis Bay Territory.
authorised officer:
(a) in sections 180A, 180B, 180C and 180D, subsections 184(5) and 185(2) and paragraph 186(1)(ca), means:
(i) the Commissioner of Police; or
(ii) a Deputy Commissioner of Police; or
(iii) a member of the Australian Federal Police who is covered by an authorisation in force under subsection 5AB(1A); and
(b) in any other case, means:
(i) the head (however described) of the enforcement agency or a person acting as that head; or
(ii) a deputy head (however described) of the enforcement agency or a person acting as that deputy head; or
(iii) a person who holds, or is acting in, an office or position in the enforcement agency that is covered by an authorisation in force under subsection 5AB(1).
authorised representative of a carrier means one of the following persons:
(a) the Managing Director of the carrier;
(b) the secretary of the carrier;
(c) an employee of the carrier authorised in writing for the purposes of this paragraph by the Managing Director or the secretary of the carrier.
authority, in relation to a State, includes:
(a) a Minister of that State;
(b) an officer of that State;
(c) an authority or body established for a public purpose by or under a law of that State; and
(d) without limiting the generality of paragraph (c), the Police Force of that State.
Board of the ACC means the Board of the Australian Crime Commission established under section 7B of the ACC Act.
carriage service provider has the meaning given by the Telecommunications Act 1997.
carrier means:
(a) except in Parts 5‑4 and 5‑4A:
(i) a carrier (within the meaning of the Telecommunications Act 1997); or
(ii) a carriage service provider; and
(b) in Parts 5‑4 and 5‑4A—a carrier (within the meaning of the Telecommunications Act 1997).
carry includes transmit, switch and receive.
certifying officer, in relation to an agency, or an eligible authority of a State, means:
(a) in the case of the Australian Federal Police—the Commissioner of Police, a Deputy Commissioner of Police or a person authorised to be a certifying officer of the Australian Federal Police under subsection 5AC(1); or
(aa) in the case of the National Anti‑Corruption Commission:
(i) the National Anti‑Corruption Commissioner; or
(ii) a National Anti‑Corruption Deputy Commissioner; or
(iii) a person authorised to be a certifying officer of the National Anti‑Corruption Commission under subsection 5AC(2); or
(b) in the case of the ACC:
(i) the Chief Executive Officer of the ACC or an examiner; or
(ii) a person authorised to be a certifying officer of the ACC under subsection 5AC(3); or
(c) in the case of the Police Force of a State—the Commissioner, a Deputy Commissioner, an officer whose rank is equivalent to that of Assistant Commissioner of the Australian Federal Police, or a person authorised to be a certifying officer of the Police Force of the State under subsection 5AC(4); or
(d) in the case of the Crime Commission (NSW):
(i) a member of the Crime Commission (NSW); or
(ii) a person authorised to be a certifying officer of the Crime Commission (NSW) under subsection 5AC(5); or
(e) in the case of the Independent Commission Against Corruption (NSW):
(i) the Chief Commissioner, a Commissioner or an Assistant Commissioner of the Independent Commission Against Corruption (NSW); or
(ii) a person authorised to be a certifying officer of the Independent Commission Against Corruption (NSW) under subsection 5AC(6); or
(ea) in the case of the IBAC (Vic.):
(i) the Commissioner of the IBAC (Vic.); or
(ii) the Deputy Commissioner of the IBAC (Vic.); or
(iii) a person authorised to be a certifying officer of the IBAC (Vic.) under subsection 5AC(7); or
(f) in the case of the Crime and Corruption Commission (Qld):
(i) the chairperson (as defined by the Crime and Corruption Act (Qld)); or
(ii) a senior executive officer (as defined by the Crime and Corruption Act (Qld)); or
(g) in the case of the Law Enforcement Conduct Commission (NSW):
(i) the Chief Commissioner of the Law Enforcement Conduct Commission (NSW); or
(ii) the Commissioner for Integrity of the Law Enforcement Conduct Commission (NSW); or
(iii) a person authorised to be a certifying officer of the Law Enforcement Conduct Commission (NSW) under subsection 5AC(8); or
(i) in the case of the Corruption and Crime Commission (WA):
(i) the Commissioner of the Corruption and Crime Commission (WA); or
(ii) a person authorised to be a certifying officer of the Corruption and Crime Commission (WA) under subsection 5AC(9); or
(ia) in the case of the Independent Commission Against Corruption (SA):
(i) the Commissioner of the Independent Commission Against Corruption (SA); or
(ii) the Deputy Commissioner of the Independent Commission Against Corruption (SA); or
(iii) a person authorised to be a certifying officer for the Independent Commission Against Corruption (SA) under subsection 5AC(9A); or
(j) in the case of any other agency:
(i) the chief executive officer or an acting chief executive officer of the agency; or
(ii) a person authorised to be a certifying officer of the agency under subsection 5AC(10).
certifying official, of an issuing agency, means:
(a) if the issuing agency is an enforcement agency (including an interception agency)—a certifying officer of the agency; and
(b) if the issuing agency is the Organisation—a certifying person of the Organisation.
certifying person means any of the following:
(a) the Director‑General of Security;
(b) a Deputy Director‑General of Security;
(c) a person authorised to be a certifying person of the Organisation under section 5AD.
chief officer, in relation to an agency, an eligible Commonwealth authority or an eligible authority of a State, means:
(a) in the case of the Australian Federal Police—the Commissioner of Police; or
(aa) in the case of the National Anti‑Corruption Commission—the National Anti‑Corruption Commissioner; or
(b) in the case of the ACC—the Chief Executive Officer of the ACC; or
(ba) in the case of an eligible Commonwealth authority—the member constituting, or the member who generally presides at hearings and other meetings of, the Commonwealth Royal Commission concerned; or
(c) in the case of the Police Force of a State—the Commissioner of that Police Force; or
(d) in the case of the Crime Commission (NSW)—the Commissioner of the Crime Commission (NSW); or
(e) in the case of the Independent Commission Against Corruption (NSW)—the Chief Commissioner of the Independent Commission Against Corruption (NSW); or
(ea) in the case of the Inspector of the Independent Commission Against Corruption (NSW)—the Inspector of the Independent Commission Against Corruption (NSW); or
(eb) in the case of the IBAC (Vic.)—the Commissioner of the IBAC (Vic.); or
(ec) in the case of the Victorian Inspectorate—the Inspector of the Victorian Inspectorate; or
(f) in the case of the Crime and Corruption Commission (Qld)—the chairperson of the Crime and Corruption Commission (Qld); or
(h) in the case of the Law Enforcement Conduct Commission (NSW)—the Chief Commissioner of the Law Enforcement Conduct Commission (NSW); or
(ha) in the case of the Inspector of the Law Enforcement Conduct Commission (NSW)—the Inspector of the Law Enforcement Conduct Commission (NSW); or
(k) in the case of the Corruption and Crime Commission (WA)—the Commissioner of the Corruption and Crime Commission (WA); or
(l) in the case of the Parliamentary Inspector of the Corruption and Crime Commission (WA)—the Parliamentary Inspector of the Corruption and Crime Commission (WA); or
(la) in the case of the Independent Commission Against Corruption (SA)—the Commissioner of the Independent Commission Against Corruption (SA); or
(lb) in the case of the Inspector of the Independent Commission Against Corruption (SA)—the Inspector of the Independent Commission Against Corruption (SA); or
(m) in the case of an enforcement agency that is not an interception agency and is not an eligible authority of a State—the chief executive officer or an acting chief executive officer of the agency.
Commissioner means:
(a) in relation to the Police Force of a State—the Commissioner of Police (however designated) of that State; or
(b) in relation to the Crime and Corruption Commission (Qld)—a commissioner (within the meaning of the Crime and Corruption Act (Qld)).
Commissioner of Police means the Commissioner of Police referred to in section 6 of the Australian Federal Police Act 1979, and includes an acting Commissioner of Police.
Commonwealth agency means:
(a) the Australian Federal Police; or
(aa) the National Anti‑Corruption Commission; or
(b) the ACC.
Commonwealth Royal Commission means a Royal Commission within the meaning of the Royal Commissions Act 1902.
communicate, in relation to information, includes divulge.
communication includes conversation and a message, and any part of a conversation or message, whether:
(a) in the form of:
(i) speech, music or other sounds;
(ii) data;
(iii) text;
(iv) visual images, whether or not animated; or
(v) signals; or
(b) in any other form or in any combination of forms.
Communications Access Coordinator has the meaning given by section 6R.
community safety detention order has the same meaning as in Division 395 of the Criminal Code.
community safety supervision order has the same meaning as in Division 395 of the Criminal Code.
conduct includes any act or omission.
confirmed control order has the same meaning as in Part 5.3 of the Criminal Code.
connected with: a purpose is connected with a preventative detention order law if the purpose is connected with the performance of a function or duty, or the exercise of a power, by a person, court, tribunal or other body under, or in relation to a matter arising under, that law, so far as the function, duty or power relates to a preventative detention order (within the meaning of that law).
control order has the same meaning as in Part 5.3 of the Criminal Code.
Corruption and Crime Commission (WA) means the commission referred to in section 8 of the Corruption, Crime and Misconduct Act (WA).
Corruption, Crime and Misconduct Act (WA) means the Corruption, Crime and Misconduct Act 2003 (WA).
Crime and Corruption Act (Qld) means the Crime and Corruption Act 2001 (Qld).
Crime and Corruption Commission (Qld) means the commission referred to in section 7 of the Crime and Corruption Act (Qld).
Crime Commission Act (NSW) means the Crime Commission Act 2012 (NSW).
Crime Commission (NSW) means the commission referred to in section 7 of the Crime Commission Act (NSW).
crime within the jurisdiction of the ICC has the same meaning as in the International Criminal Court Act 2002.
criminal law‑enforcement agency has the meaning given by section 110A.
criminal organisation means an organisation (whether incorporated or not, and however structured) that is:
(a) a declared organisation within the meaning of:
(i) the Crimes (Criminal Organisations Control) Act 2009 of New South Wales; or
(ii) the Serious and Organised Crime (Control) Act 2008 of South Australia; or
(b) an organisation of a kind specified by or under, or described or mentioned in, a prescribed provision of a law of a State or Territory.
data disruption intercept information means information obtained under a data disruption warrant by intercepting a communication passing over a telecommunications system.
data disruption warrant has the same meaning as in the Surveillance Devices Act 2004.
Defence Minister has the same meaning as in the Intelligence Services Act 2001.
delivery point means a location in respect of which a nomination or determination is in force under section 188.
Deputy Commissioner of Police means a Deputy Commissioner of Police referred to in section 6 of the Australian Federal Police Act 1979.
Deputy Director‑General of Security means a person who holds, or is acting in, a position known as Deputy Director‑General of Security.
deputy PIM (short for deputy public interest monitor), in relation to Queensland, means a person appointed as a deputy public interest monitor under:
(a) the Crime and Corruption Act (Qld); or
(b) the Police Powers and Responsibilities Act 2000 of Queensland.
detained in custody in a prison has the meaning given by section 100.1 of the Criminal Code.
Director‑General of Security means the person holding, or performing the duties of, the office of Director‑General of Security under the Australian Security Intelligence Organisation Act 1979.
domestic preservation notice has the meaning given by subsection 107H(1).
earth‑based facility means a facility other than a satellite‑based facility.
eligible authority, in relation to a State, means:
(a) in any case—the Police Force of that State; or
(b) in the case of New South Wales:
(i) the Crime Commission (NSW); or
(ii) the Independent Commission Against Corruption (NSW); or
(iii) the Inspector of the Independent Commission Against Corruption (NSW); or
(iv) the Law Enforcement Conduct Commission (NSW); or
(v) the Inspector of the Law Enforcement Conduct Commission (NSW); or
(ba) in the case of Victoria—the IBAC (Vic.) or the Victorian Inspectorate; or
(c) in the case of Queensland—the Crime and Corruption Commission (Qld); or
(d) in the case of Western Australia—the Corruption and Crime Commission (WA) or the Parliamentary Inspector of the Corruption and Crime Commission (WA); or
(e) in the case of South Australia—the Independent Commission Against Corruption (SA) or the Inspector of the Independent Commission Against Corruption (SA).
eligible Commonwealth authority means a Commonwealth Royal Commission in relation to which a declaration under section 5AA is in force.
emergency service facility has the meaning given by subsection 6(2A).
enforcement agency has the meaning given by section 176A.
engage in a hostile activity has the same meaning as in Part 5.3 of the Criminal Code.
equipment means any apparatus or equipment used, or intended for use, in or in connection with a telecommunications network, and includes a telecommunications device but does not include a line. This definition does not apply to Schedule 1.
examiner has the same meaning as in the ACC Act.
extended supervision order has the meaning given by section 105A.2 of the Criminal Code.
facility has the same meaning as in the Telecommunications Act 1997.
Foreign Affairs Minister has the same meaning as in the Intelligence Services Act 2001.
foreign communication means a communication sent or received outside Australia.
foreign communications warrant means an interception warrant issued or to be issued under section 11C.
foreign country, when used in the expression hostile activity in a foreign country, has the same meaning as in the Criminal Code.
foreign intelligence means intelligence about the capabilities, intentions or activities of people or organisations outside Australia.
foreign intelligence information means information obtained (whether before or after the commencement of this definition) under a warrant issued under section 11A, 11B or 11C.
foreign law enforcement agency means:
(a) a police force (however described) of a foreign country; or
(b) any other authority or person responsible for the enforcement of the laws of the foreign country; or
(c) any other authority or person responsible to the International Criminal Court for investigating or prosecuting a crime within the jurisdiction of the ICC; or
(d) any other authority or person responsible to a War Crimes Tribunal for investigating or prosecuting a War Crimes Tribunal offence.
foreign organisation means an organisation (including a government) outside Australia.
foreign power has the same meaning as in the Australian Security Intelligence Organisation Act 1979.
foreign preservation notice has the meaning given by subsection 107N(1).
general computer access intercept information means information obtained under a general computer access warrant by intercepting a communication passing over a telecommunications system.
general computer access warrant means a warrant issued under section 27C of the Surveillance Devices Act 2004.
General Register means the General Register of Warrants kept under section 81A.
Governor, in relation to a State, means, in the case of the Northern Territory, the Administrator of the Northern Territory.
historic domestic preservation notice has the meaning given by subparagraph 107H(1)(b)(i).
IBAC Act (Vic.) means the Independent Broad‑based Anti‑corruption Commission Act 2011 (Vic.).
IBAC (Vic.) means the Independent Broad‑based Anti‑corruption Commission established by the IBAC Act (Vic.).
IBAC (Vic.) officer means a person who is an IBAC Officer (within the meaning of the IBAC Act (Vic.)).
IGIS official has the same meaning as in the Australian Security Intelligence Organisation Act 1979.
Immigration and Border Protection Department means the Department administered by the Minister administering Part XII of the Customs Act 1901.
Immigration Minister means the Minister administering the Migration Act 1958.
immigration offence means an offence against section 236 of the Migration Act 1958.
implementation phase has the meaning given by subsection 187H(2).
Independent Commission Against Corruption Act (NSW) means the Independent Commission Against Corruption Act 1988 (NSW).
Independent Commission Against Corruption Act (SA) means the Independent Commission Against Corruption Act 2012 (SA).
Independent Commission Against Corruption (NSW) means the commission referred to in section 4 of the Independent Commission Against Corruption Act (NSW).
Independent Commission Against Corruption (SA) means the Independent Commission Against Corruption of South Australia.
infrastructure means any line or equipment used to facilitate communications across a telecommunications network.
inspecting officer means:
(a) the Ombudsman;
(b) a Deputy Commonwealth Ombudsman; or
(c) a member of the staff referred to in subsection 31(1) of the Ombudsman Act 1976.
Inspector of the Independent Commission Against Corruption (NSW) means the inspector referred to in section 57A of the Independent Commission Against Corruption Act (NSW).
Inspector of the Independent Commission Against Corruption (SA) means the inspector referred to in clause 2 of Schedule 4 to the Independent Commission Against Corruption Act (SA).
Inspector of the Law Enforcement Conduct Commission (NSW) means the inspector referred to in section 120 of the Law Enforcement Conduct Commission Act (NSW).
Inspector of the National Anti‑Corruption Commission means the Inspector within the meaning of the National Anti‑Corruption Commission Act 2022.
Inspector of the Victorian Inspectorate has the same meaning as Inspector has in the Victorian Inspectorate Act.
integrity authority means:
(a) an integrity testing controlled operations authority under Part IAB of the Crimes Act 1914 authorising a controlled operation under that Part; or
(b) an integrity testing authority under Part IABA of the Crimes Act 1914 authorising an integrity testing operation under that Part.
integrity operation means:
(a) a controlled operation authorised by an integrity testing controlled operation authority granted under Part IAB of the Crimes Act 1914; or
(b) an integrity testing operation authorised by an integrity testing authority granted under Part IABA of the Crimes Act 1914.
intended recipient, of a communication, (except when used in Schedule 1) has the meaning given by section 5G.
interception agency means:
(a) except for the purposes of section 6R, Part 2‑6 or Chapter 5:
(i) a Commonwealth agency; or
(ii) an eligible authority of a State in relation to which a declaration under section 34 is in force; or
(b) for the purposes of Part 2‑6:
(i) a Commonwealth agency; or
(ii) an eligible authority of a State; or
(c) for the purposes of section 6R and Chapter 5:
(i) the Organisation; or
(ii) a Commonwealth agency; or
(iii) an eligible authority of a State in relation to which a declaration under section 34 is in force.
interception warrant means a warrant issued under Chapter 2.
interception warrant information has the meaning given by section 6EA.
interim control order has the same meaning as in Part 5.3 of the Criminal Code.
interim supervision order has the meaning given by section 105A.2 of the Criminal Code.
international assistance application means an application for a stored communications warrant made as a result of:
(a) an authorisation under section 15B of the Mutual Assistance in Criminal Matters Act 1987; or
(b) an authorisation under section 78A of the International Criminal Court Act 2002; or
(c) an authorisation under section 34A of the International War Crimes Tribunals Act 1995.
International Criminal Court has the same meaning as ICC in the International Criminal Court Act 2002.
international offence has the meaning given by subsection 162(3).
in the possession of, in relation to a document, record or copy, includes in the custody of or under the control of.
investigative proceeding has the same meaning as in the Mutual Assistance in Criminal Matters Act 1987.
issuing agency, in relation to a preservation notice, means the agency that gives the notice.
issuing authority (except when used in Schedule 1) means a person:
(a) in respect of whom an appointment is in force under section 6DB; and
(b) in relation to a warrant applied for by the National Anti‑Corruption Commission—who is a superior Court Judge.
journalist information warrant means a warrant issued under Division 4C of Part 4‑1.
Law Enforcement Conduct Commission Act (NSW) means the Law Enforcement Conduct Commission Act 2016 (NSW).
Law Enforcement Conduct Commission (NSW) means the commission referred to in section 17 of the Law Enforcement Conduct Commission Act (NSW).
lawfully accessed information means information obtained by accessing a stored communication otherwise than in contravention of subsection 108(1), but does not include:
(a) information obtained by accessing a stored communication under a section 31A authorisation; or
(b) information obtained in accordance with an international production order (within the meaning of Schedule 1).
lawfully intercepted information has the meaning given by section 6E.
law of the Commonwealth includes a law of the Australian Capital Territory.
line has the same meaning as in the Telecommunications Act 1997.
listening device has the same meaning as in Division 2 of Part III of the Australian Security Intelligence Organisation Act 1979.
maintain includes adjust and repair.
main unexplained wealth provisions has the same meaning as in the Proceeds of Crime Act 2002.
Managing Director, in relation to a carrier, means the chief executive officer (however described) of the carrier.
member, of a criminal organisation, includes:
(a) in the case of an organisation that is a body corporate—a director and an officer of the body corporate; and
(b) in any case:
(i) an associate member or prospective member (however described) of the organisation; and
(ii) a person who identifies himself or herself, in some way, as belonging to the organisation; and
(iii) a person who is treated by the organisation or persons who belong to the organisation, in some way, as if he or she belongs to the organisation.
member of a police force means:
(a) a member of the Australian Federal Police; or
(b) an officer of the Police Force of a State or Territory.
member of the Australian Federal Police includes a special member of the Australian Federal Police.
member of the Crime Commission (NSW) means the commissioner referred to in section 8, or an assistant commissioner referred to in section 9, of the Crime Commission Act (NSW).
member of the staff of a Commonwealth Royal Commission means:
(a) a legal practitioner appointed to assist the Commission; or
(b) a person authorised to be a member of the staff of a Commonwealth Royal Commission for the purposes of this Act under section 5AE.
member of the staff of the ACC has the same meaning as in the ACC Act.
member of the staff of the Crime Commission (NSW) means a person who is covered by paragraph 74(1)(a) or (b) of the Crime Commission Act (NSW).
member of the staff of the Independent Commission Against Corruption (SA) means a person who is engaged as an employee of the Commission under subsection 12(1) of the Independent Commission Against Corruption Act (SA).
member of the staff of the Inspector of the Independent Commission Against Corruption (NSW) means:
(a) a member of the staff referred to in subsection 57E(1) or (2) of the Independent Commission Against Corruption Act (NSW); or
(b) a person engaged under subsection 57E(3) of that Act; or
(c) a person whose services are used under subsection 57E(4) of that Act.
member of the staff of the Inspector of the Independent Commission Against Corruption (SA) means a person covered by an arrangement referred to in clause 4 of Schedule 4 to the Independent Commission Against Corruption Act (SA).
member of the staff of the Inspector of the Law Enforcement Conduct Commission (NSW) means:
(a) a member of the staff referred to in subsection 128(1) of the Law Enforcement Conduct Commission Act (NSW); or
(b) a person engaged, or whose services are used, under subsection 128(4) of that Act.
member of the staff of the Law Enforcement Conduct Commission (NSW) means:
(a) a member of the staff referred to in subsection 21(1) of the Law Enforcement Conduct Commission Act (NSW); or
(b) a person engaged, or whose services are used, under subsection 21(2) or (3) of that Act.
Minister, in relation to a State, means:
(a) except where paragraph (b) applies—a Minister of the Crown of that State; or
(b) in the case of the Northern Territory—a person holding Ministerial office within the meaning of the Northern Territory (Self‑Government) Act 1978.
Minister for Defence means the Minister administering the Defence Act 1903.
Minister for Foreign Affairs means the Minister administering the Diplomatic Privileges and Immunities Act 1967.
missing person information, in relation to a missing person, has the meaning given by section 182.
named person warrant means an interception warrant issued or to be issued under section 9A, 11B or 46A.
National Anti‑Corruption Commissioner means the Commissioner within the meaning of the National Anti‑Corruption Commission Act 2022.
National Anti‑Corruption Deputy Commissioner means a Deputy Commissioner within the meaning of the National Anti‑Corruption Commission Act 2022.
network activity warrant has the same meaning as in the Surveillance Devices Act 2004.
network activity warrant intercept information means information obtained under a network activity warrant by intercepting a communication passing over a telecommunications system.
network protection duties, in relation to a computer network, means duties relating to:
(a) the operation, protection or maintenance of the network; or
(b) if the network is operated by, or on behalf of, a Commonwealth agency, security authority or eligible authority of a State—ensuring that the network is appropriately used by employees, office holders or contractors of the agency or authority.
nominated ART member (except when used in Schedule 1) means a member of the Administrative Review Tribunal in respect of whom a nomination is in force under section 6DA to issue warrants under Part 2‑5.
nominated carriage service provider means a carriage service provider covered by a declaration in force under subsection 197(4).
non‑missing person information has the meaning given by section 182.
notifiable equipment, in relation to a carrier or nominated carriage service provider, means equipment that:
(a) provides all or part of the carrier or provider’s telecommunication services; or
(b) manages all or part of the provision of the carrier or provider’s telecommunication services; or
(c) manages some or all of the information to which section 276 of the Telecommunications Act 1997 applies in relation to the carrier or provider.
oath includes affirmation.
offence means an offence against a law of the Commonwealth or of a State.
office holder means a person who holds, occupies or performs the duties of an office, position or appointment.
officer, in relation to an agency, an eligible Commonwealth authority or an eligible authority of a State, means:
(a) in the case of the Australian Federal Police—a member of the Australian Federal Police; or
(aa) in the case of the National Anti‑Corruption Commission—the National Anti‑Corruption Commissioner or another staff member of the NACC; or
(b) in the case of the ACC—the Chief Executive Officer of the ACC, an examiner or a member of the staff of the ACC; or
(ba) in the case of an eligible Commonwealth authority—a member of the Commonwealth Royal Commission concerned or a member of the staff of the Royal Commission; or
(c) in the case of the Police Force of a State—an officer of that Police Force; or
(d) in the case of the Crime Commission (NSW)—a member of the Crime Commission (NSW) or a member of the staff of the Crime Commission (NSW); or
(e) in the case of the Independent Commission Against Corruption (NSW)—an officer of the Independent Commission Against Corruption (NSW); or
(ea) in the case of the Inspector of the Independent Commission Against Corruption (NSW):
(i) the Inspector of the Independent Commission Against Corruption (NSW); or
(ii) a member of the staff of the Inspector of the Independent Commission Against Corruption (NSW); or
(eb) in the case of the IBAC (Vic.)—an IBAC (Vic.) officer; or
(ec) in the case of the Victorian Inspectorate—a Victorian Inspectorate officer; or
(f) in the case of the Crime and Corruption Commission (Qld)—a commission officer (within the meaning of the Crime and Corruption Act (Qld)); or
(h) in the case of the Law Enforcement Conduct Commission (NSW):
(i) the Chief Commissioner of the Law Enforcement Conduct Commission (NSW); or
(ii) the Commissioner for Integrity of the Law Enforcement Conduct Commission (NSW); or
(iii) an Assistant Commissioner of the Law Enforcement Conduct Commission (NSW); or
(iv) a member of the staff of the Law Enforcement Conduct Commission (NSW); or
(ha) in the case of the Inspector of the Law Enforcement Conduct Commission (NSW):
(i) the Inspector of the Law Enforcement Conduct Commission (NSW); or
(ii) an Assistant Inspector of the Law Enforcement Conduct Commission (NSW); or
(iii) a member of the staff of the Inspector of the Law Enforcement Conduct Commission (NSW); or
(k) in the case of the Corruption and Crime Commission (WA)—an officer of the Corruption and Crime Commission (WA); or
(l) in the case of the Parliamentary Inspector of the Corruption and Crime Commission (WA)—the Parliamentary Inspector of the Corruption and Crime Commission (WA) or an officer of the Parliamentary Inspector of the Corruption and Crime Commission (WA); or
(m) in the case of the Independent Commission Against Corruption (SA):
(i) the Commissioner of the Independent Commission Against Corruption (SA); or
(ii) the Deputy Commissioner of the Independent Commission Against Corruption (SA); or
(iii) a member of the staff of the Independent Commission Against Corruption (SA); or
(ma) in the case of the Inspector of the Independent Commission Against Corruption (SA):
(i) the Inspector of the Independent Commission Against Corruption (SA); or
(ii) the Deputy Inspector of the Independent Commission Against Corruption (SA); or
(iii) a member of the staff of the Inspector of the Independent Commission Against Corruption (SA); 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.
officer of a State has the meaning given by subsection 6G(2).
officer of a Territory has the meaning given by subsection 6G(3).
officer of the Commonwealth has the meaning given by subsection 6G(1).
officer of the Corruption and Crime Commission (WA) means an officer of the Commission (within the meaning of the Corruption, Crime and Misconduct Act (WA)).
officer of the Independent Commission Against Corruption (NSW) means an officer (within the meaning of the Independent Commission Against Corruption Act (NSW)) of that Commission.
officer of the Law Enforcement Conduct Commission (NSW) means an officer of the Commission (within the meaning of the Law Enforcement Conduct Commission Act (NSW)).
officer of the Parliamentary Inspector of the Corruption and Crime Commission (WA) means an officer of the Parliamentary Inspector (within the meaning of the Corruption, Crime and Misconduct Act (WA)).
Ombudsman means the Commonwealth Ombudsman.
Ombudsman official means:
(a) the Ombudsman; or
(b) a Deputy Commonwealth Ombudsman; or
(c) a person who is a member of the staff referred to in subsection 31(1) of the Ombudsman Act 1976.
ongoing domestic preservation notice has the meaning given by subparagraph 107H(1)(b)(ii).
Organisation means the Australian Security Intelligence Organisation.
organised crime control law means a law of a State, a purpose of which is to combat organised crime or restrict the activities of criminal organisations, that provides for:
(a) the declaration of an organisation as a declared organisation; or
(b) the making of orders described as control orders or interim control orders in relation to members of criminal organisations.
original warrant means a warrant other than a renewal of a warrant.
Parliamentary Inspector of the Corruption and Crime Commission (WA) means the inspector referred to in section 188 of the Corruption, Crime and Misconduct Act (WA).
Part 2‑2 warrant means a warrant issued under Part 2‑2.
Part 2‑5 warrant means a warrant issued under Part 2‑5.
Part 4‑1 issuing authority means a person:
(a) in respect of whom an appointment is in force under section 6DC; and
(b) in relation to a warrant applied for by the National Anti‑Corruption Commission—who is a superior Court Judge.
Part 5.3 object means:
(a) in relation to a control order—any of the following:
(i) the protection of the public from a terrorist act;
(ii) the prevention of the provision of support for, or the facilitation of, a terrorist act;
(iii) the prevention of the provision of support for, or the facilitation of, the engagement in a hostile activity in a foreign country; or
(b) in relation to an extended supervision order or interim supervision order—the protection of the community from the unacceptable risk of a terrorist offender committing a serious Part 5.3 offence.
Part 5.3 supervisory order means:
(a) a control order; or
(b) an extended supervision order or interim supervision order.
Part 5.3 warrant means a warrant issued:
(a) under subsection 46(4) or (7) or 46A(2A) or (2C); or
(b) under section 48 in the circumstances mentioned in subsection 46(4) or (7).
Part 5.3 warrant agency means:
(a) a Commonwealth agency; or
(b) an eligible authority of a State that a declaration in force under section 34 authorises to apply for Part 5.3 warrants (see section 38A).
Part 9.10 object means the protection of the community from serious harm by addressing the unacceptable risk of a serious offender committing serious violent or sexual offences.
Part 9.10 order means a community safety detention order or a community safety supervision order.
Part 9.10 warrant means a warrant issued:
(a) under subsection 46(9) or (12) or 46A(2E) or (2G); or
(b) under section 48 in the circumstances mentioned in subsection 46(9) or (12).
Part 9.10 warrant agency means:
(a) a Commonwealth agency; or
(b) an eligible authority of a State that a declaration in force under section 34 authorises to apply for Part 9.10 warrants.
participating State has the same meaning as in the Proceeds of Crime Act 2002.
passing over includes being carried.
Note: See section 5F for when a communication is passing over a telecommunications system.
permitted purpose, in relation to an interception agency, the Immigration and Border Protection Department, an eligible Commonwealth authority, an eligible authority of a State, ASIC or the Inspector of the National Anti‑Corruption Commission, means a purpose connected with:
(a) in any case (except in the case of the Immigration and Border Protection Department or ASIC):
(i) an investigation by the agency or eligible authority of a prescribed offence;
(ii) the making by an authority, body or person of a decision whether or not to begin a relevant proceeding in relation to the agency or eligible authority;
(iii) a relevant proceeding in relation to the agency or eligible authority;
(iv) the exercise by the chief officer of the agency or eligible authority of the powers conferred by section 68; or
(v) the keeping of records by the agency under Part 2‑7, or by the eligible authority under provisions of a law of the State that impose on the chief officer of the authority requirements corresponding to those imposed on the chief officer of a Commonwealth agency by sections 80 and 81; or
(aaa) in the case of a Commonwealth agency or the Immigration and Border Protection Department—a purpose mentioned in the table in section 6S in relation to the agency or the Immigration and Border Protection Department; or
(aa) in the case of the ACC:
(i) a special ACC operation/investigation; or
(ii) a report to the Board of the ACC on the outcome of such an operation or investigation; or
(iii) an investigation of, or an inquiry into, alleged misbehaviour, or alleged improper conduct, of a member of the staff referred to in subsection 47(1) of the Australian Crime Commission Act 2002; or
(iv) a report on such an investigation or inquiry; or
(v) the making by a person of a decision, following such an investigation or inquiry, in relation to the employment of such a staff member (including a decision to terminate the staff member’s employment); or
(vi) a review (whether by way of appeal or otherwise) of such a decision; or
(b) in the case of the Australian Federal Police:
(i) an investigation of, or an inquiry into, alleged misbehaviour, or alleged improper conduct, of an officer of the Commonwealth, being an investigation or inquiry under a law of the Commonwealth or by a person in the person’s capacity as an officer of the Commonwealth; or
(ii) a report on such an investigation or inquiry; or
(iia) the making by a person of a decision under the Australian Federal Police Act 1979 in relation to the engagement of an AFP employee, the retirement of an AFP employee or the termination of the employment of an AFP employee or in relation to the appointment or the termination of the appointment of a special member of the Australian Federal Police; or
(iib) a review (whether by way of appeal or otherwise) of such a decision; or
(iii) the tendering to the Governor‑General of advice to terminate, because of misbehaviour or improper conduct, the appointment of an officer of the Commonwealth; or
(iv) deliberations of the Executive Council in connection with advice to the Governor‑General to terminate, because of misbehaviour or improper conduct, the appointment of an officer of the Commonwealth; or
(v) the performance of a function or duty, or the exercise of a power, by a person, court or other body under, or in relation to a matter arising under, Division 104 (control orders) or Division 105A (post‑sentence orders) of the Criminal Code; or
(vi) a preventative detention order law; or
(vii) a post‑sentence detention law or a post‑sentence supervision law; or
(viii) the making of a decision whether to apply for a post‑sentence order, or for a variation or review of a post‑sentence order, under Division 105A of the Criminal Code in relation to a person; or
(ix) the making of a decision whether to apply for an order, or make any other application in relation to an order, under a post‑sentence detention law or a post‑sentence supervision law in relation to a person; or
(x) the performance of a function or duty, or the exercise of a power, by a person, court or other body under, or in relation to a matter arising under, Division 395 of the Criminal Code (community safety orders); or
(xi) the making of a decision whether to apply for a Part 9.10 order, or for a variation or review of a Part 9.10 order, under Division 395 of the Criminal Code in relation to a person; or
(baa) in the case of the National Anti‑Corruption Commission:
(i) a corruption investigation or NACC corruption investigation (within the meaning of the National Anti‑Corruption Commission Act 2022); or
(ii) a report on such an investigation; or
(bab) in the case of the Inspector of the National Anti‑Corruption Commission:
(i) a NACC corruption investigation (within the meaning of the National Anti‑Corruption Commission Act 2022); or
(ii) a report on such an investigation; or
(ba) in the case of an eligible Commonwealth authority:
(i) an investigation that the Commonwealth Royal Commission concerned is conducting in the course of the inquiry it is commissioned to undertake; or
(ii) a report on such an investigation; or
(c) in the case of the Police Force of a State:
(i) an investigation of, or an inquiry into, alleged misbehaviour, or alleged improper conduct, of an officer of that State, being an investigation or inquiry under a law of that State or by a person in the person’s capacity as an officer of that State; or
(ii) a report on such an investigation or inquiry; or
(iia) the making by a person of a decision in relation to the appointment, re‑appointment, term of appointment, retirement or termination of appointment of an officer or member of staff of that Police Force; or
(iib) a review (whether by way of appeal or otherwise) of such a decision; or
(iii) the tendering to the Governor of that State of advice to terminate, because of misbehaviour or improper conduct, the appointment of an officer of that State; or
(iv) deliberations of the Executive Council of that State in connection with advice to the Governor of that State to terminate, because of misbehaviour or improper conduct, the appointment of an officer of that State; or
(v) the performance of a function or duty, or the exercise of a power, by a person, court or other body under, or in relation to a matter arising under, an organised crime control law of that State; or
(vi) the performance of a function or duty, or the exercise of a power, by a person, court or other body under, or in relation to a matter arising under, Division 104 (control orders) or Division 105A (post‑sentence orders) of the Criminal Code; or
(vii) a preventative detention order law; or
(viii) a post‑sentence detention law or a post‑sentence supervision law; or
(ix) the making of a decision whether to apply for a post‑sentence order, or for a variation or review of a post‑sentence order, under Division 105A of the Criminal Code in relation to a person; or
(x) the making of a decision whether to apply for an order, or make any other application in relation to an order, under a post‑sentence detention law or a post‑sentence supervision law in relation to a person; or
(d) in the case of an eligible authority of a State:
(i) an inspection of the authority’s records that is made under a requirement of the law of that State, being a requirement of the kind referred to in paragraph 35(1)(h); or
(ii) a report on such an inspection; or
(da) in the case of the Independent Commission Against Corruption (NSW):
(i) an investigation under the Independent Commission Against Corruption Act (NSW) into whether corrupt conduct (within the meaning of that Act) may have occurred, may be occurring or may be about to occur; or
(ii) a report on such an investigation; or
(db) in the case of the Inspector of the Independent Commission Against Corruption (NSW):
(ia) auditing the operations of the Independent Commission Against Corruption (NSW) for the purpose of monitoring compliance with the law of New South Wales; or
(i) dealing with (by reports and recommendations) complaints of abuse of power, impropriety or other forms of misconduct (within the meaning of the Independent Commission Against Corruption Act (NSW)) on the part of the Independent Commission Against Corruption (NSW) or an officer of the Independent Commission Against Corruption (NSW); or
(ii) dealing with (by reports and recommendations) conduct amounting to maladministration (within the meaning of the Independent Commission Against Corruption Act (NSW)) by the Independent Commission Against Corruption (NSW) or an officer of the Independent Commission Against Corruption (NSW); or
(iii) assessing the effectiveness and appropriateness of the procedures of the Independent Commission Against Corruption (NSW) relating to the legality or propriety of that Commission’s activities; or
(dc) in the case of the Inspector of the Law Enforcement Conduct Commission (NSW):
(ia) auditing the operations of the Law Enforcement Conduct Commission (NSW) for the purpose of monitoring compliance with the law of New South Wales; or
(i) dealing with (by reports and recommendations) conduct amounting to agency maladministration (within the meaning of subsection 122(3) of the Law Enforcement Conduct Commission Act (NSW)) on the part of the Law Enforcement Conduct Commission (NSW), whether or not the subject of a complaint; or
(ii) dealing with (by reports and recommendations) conduct amounting to officer misconduct (within the meaning of subsection 122(3) of the Law Enforcement Conduct Commission Act (NSW)) or officer maladministration (within the meaning of that subsection) on the part of an officer of the Law Enforcement Conduct Commission (NSW), whether or not the subject of a complaint; or
(iii) assessing the effectiveness and appropriateness of the policies and procedures of the Law Enforcement Conduct Commission (NSW) relating to the legality or propriety of that Commission’s activities; or
(e) in the case of the Law Enforcement Conduct Commission (NSW):
(i) an investigation under Part 6 of the Law Enforcement Conduct Commission Act (NSW) in respect of conduct to which subsection (7) of this section applies; or
(ii) a report on an investigation covered by subparagraph (i); or
(iii) the tendering to the Governor of New South Wales of advice to terminate, because of misbehaviour or improper conduct, the appointment of the Commissioner of the New South Wales Police Force; or
(iv) deliberations of the Executive Council of New South Wales in connection with advice to the Governor of that State to terminate, because of misbehaviour or improper conduct, the appointment of the Commissioner of the New South Wales Police Force; or
(f) in the case of the IBAC (Vic.):
(i) an investigation under the IBAC Act (Vic.) of corrupt conduct (within the meaning of that Act); or
(ii) an investigation under the IBAC Act (Vic.) of police personnel conduct (within the meaning of that Act); or
(iii) a report or recommendation on an investigation covered by subparagraph (i) or (ii); or
(fa) in the case of the Victorian Inspectorate:
(i) monitoring the compliance of the IBAC (Vic.) and IBAC personnel (within the meaning of the Victorian Inspectorate Act) with the IBAC Act (Vic.) and other laws; or
(ii) overseeing the performance by the IBAC (Vic.) of its functions under the Public Interest Disclosures Act 2012 (Vic.); or
(iii) assessing the effectiveness and appropriateness of the policies and procedures of the IBAC (Vic.) which relate to the legality and propriety of IBAC (Vic.)’s activities; or
(iv) receiving complaints in accordance with the Victorian Inspectorate Act about the conduct of the IBAC (Vic.) and IBAC personnel (within the meaning of that Act); or
(v) investigating and assessing the conduct of the IBAC (Vic.) and IBAC personnel (within the meaning of the Victorian Inspectorate Act) in the performance or exercise or purported performance or purported exercise of their duties, functions and powers; or
(vi) reporting or making recommendations on an investigation covered by subparagraph (v) of this paragraph; or
(vii) monitoring the interaction between the IBAC (Vic.) and other integrity bodies to ensure compliance with relevant laws; or
(g) in the case of the Corruption and Crime Commission (WA):
(i) an investigation under the Corruption, Crime and Misconduct Act (WA) into whether misconduct (within the meaning of that Act) has or may have occurred, is or may be occurring, is or may be about to occur, or is likely to occur; or
(ii) a report on such an investigation; or
(ga) in the case of the Crime and Corruption Commission (Qld):
(i) an investigation under the Crime and Corruption Act (Qld) into whether corruption (within the meaning of that Act) may have occurred, may be occurring or may be about to occur; or
(ii) a report on such an investigation; or
(h) in the case of the Parliamentary Inspector of the Corruption and Crime Commission (WA):
(i) auditing the operation of the Corruption, Crime and Misconduct Act (WA); or
(ii) auditing the operations of the Corruption and Crime Commission (WA) for the purpose of monitoring compliance with the laws of Western Australia; or
(iii) dealing with matters of misconduct (within the meaning of the Corruption, Crime and Misconduct Act (WA)) on the part of the Corruption and Crime Commission (WA), an officer of the Corruption and Crime Commission (WA) or an officer of the Parliamentary Inspector of the Corruption and Crime Commission (WA); or
(iv) auditing any operation carried out pursuant to the powers conferred or made available by the Corruption, Crime and Misconduct Act (WA); or
(v) assessing the effectiveness and appropriateness of the Corruption and Crime Commission (WA)’s procedures; or
(vi) making recommendations to the Corruption and Crime Commission (WA), independent agencies (within the meaning of the Corruption, Crime and Misconduct Act (WA)) and appropriate authorities (within the meaning of that Act); or
(vii) reporting and making recommendations to either House of Parliament of Western Australia and the Standing Committee (within the meaning of the Corruption, Crime and Misconduct Act (WA)); or
(viii) performing any other function given to the Parliamentary Inspector of the Corruption and Crime Commission (WA) under the Corruption, Crime and Misconduct Act (WA) or another law of Western Australia; or
(i) in the case of the Independent Commission Against Corruption (SA):
(i) an investigation under the Independent Commission Against Corruption Act (SA) into corruption in public administration (within the meaning of that Act); or
(ii) a report on such an investigation; or
(ia) in the case of the Inspector of the Independent Commission Against Corruption (SA):
(i) conducting annual reviews examining the operations of the Office for Public Integrity (SA) established by section 17 of the Independent Commission Against Corruption Act (SA), and the Independent Commission Against Corruption (SA), during each financial year; or
(ii) conducting reviews relating to relevant complaints (within the meaning of Schedule 4 to the Independent Commission Against Corruption Act (SA)) received by the Inspector of the Independent Commission Against Corruption (SA); or
(iii) conducting other reviews on the Inspector of the Independent Commission Against Corruption (SA)’s own motion or at the request of the Attorney‑General of South Australia or the Committee (within the meaning of Schedule 4 to the Independent Commission Against Corruption Act (SA)); or
(iv) performing any other functions conferred on the Inspector of the Independent Commission Against Corruption (SA) by other laws of South Australia; or
(j) in the case of ASIC:
(i) an investigation by ASIC of a serious offence or of the likely commission of a serious offence; or
(ii) a report on such an investigation; or
(iii) the making of a decision whether or not to begin a prosecution for a serious offence if the prosecution arises from or relates to such an investigation; or
(iv) a prosecution for a serious offence if the prosecution arises from or relates to such an investigation.
person assisting the NACC Inspector means a person assisting the Inspector within the meaning of the National Anti‑Corruption Commission Act 2022.
PIM (short for public interest monitor) means:
(a) in relation to Victoria—a person appointed as a Public Interest Monitor under the Public Interest Monitor Act 2011 of Victoria; or
(b) in relation to Queensland—a person appointed as the public interest monitor under:
(i) the Crime and Corruption Act (Qld); or
(ii) the Police Powers and Responsibilities Act 2000 of Queensland.
police disciplinary proceeding means a disciplinary proceeding, before a tribunal or body that is responsible for disciplining members of the Australian Federal Police or officers of a Police Force of a State, against a member of the Australian Federal Police, or an officer of that Police Force, as the case may be, not being a proceeding by way of a prosecution for an offence.
post‑sentence detention law means any of the following laws:
(a) Part 3 of the Terrorism (High Risk Offenders) Act 2017 (NSW);
(b) Parts 5 and 6 of the Serious Offenders Act 2018 (Vic.);
(c) Part 3 of the Criminal Law (High Risk Offenders) Act 2015 (SA);
(d) any other law, or part of a law, of a State or Territory prescribed by the regulations.
post‑sentence order means:
(a) a continuing detention order or interim detention order made under Division 105A of the Criminal Code; or
(b) an extended supervision order or interim supervision order.
post‑sentence supervision law means any of the following laws:
(a) Part 2 of the Terrorism (High Risk Offenders) Act 2017 (NSW);
(b) Parts 3 and 4 of the Serious Offenders Act 2018 (Vic.);
(c) Part 2 of the Criminal Law (High Risk Offenders) Act 2015 (SA);
(d) any other law, or part of a law, of a State or Territory prescribed by the regulations.
Premier, in relation to a State, means, in the case of the Northern Territory, the Chief Minister of the Northern Territory.
premises includes:
(a) any land;
(b) any structure, building, aircraft, vehicle, vessel or place (whether built on or not); and
(c) any part of such a structure, building, aircraft, vehicle, vessel or place.
prescribed investigation, in relation to a Commonwealth agency, an eligible Commonwealth authority or an eligible authority of a State:
(aa) in the case of the National Anti‑Corruption Commission—means a corruption investigation or NACC corruption investigation (within the meaning of the National Anti‑Corruption Commission Act 2022); or
(a) in the case of the ACC—means a special ACC operation/investigation; or
(b) in the case of the Crime Commission (NSW)—means an investigation that the Crime Commission (NSW) is conducting in the performance of its functions under the Crime Commission Act (NSW); or
(ba) in the case of an eligible Commonwealth authority—an investigation that the Commonwealth Royal Commission concerned is conducting in the course of the inquiry it is commissioned to undertake; or
(c) in the case of the Independent Commission Against Corruption (NSW)—means an investigation that the Independent Commission Against Corruption (NSW) is conducting in the performance of its functions under the Independent Commission Against Corruption Act (NSW); or
(ca) in the case of the Inspector of the Independent Commission Against Corruption (NSW)—means an investigation that the Inspector is conducting in the performance of the Inspector’s functions under the Independent Commission Against Corruption Act (NSW); or
(cb) in the case of the IBAC (Vic.)—means an investigation that the IBAC (Vic.) is conducting in the performance of its functions under the IBAC Act (Vic.); or
(cc) in the case of the Victorian Inspectorate—means an investigation that the Victorian Inspectorate is conducting in the performance of its functions under the Victorian Inspectorate Act; or
(d) in the case of the Crime and Corruption Commission (Qld)—means an investigation that the Commission is conducting in the performance of its functions under the Crime and Corruption Act (Qld); or
(f) in the case of the Law Enforcement Conduct Commission (NSW)—means an investigation that the Commission is conducting in the performance of its functions under the Law Enforcement Conduct Commission Act (NSW); or
(fa) in the case of the Inspector of the Law Enforcement Conduct Commission (NSW)—means an investigation that the Inspector is conducting in the performance of the Inspector’s functions under the Law Enforcement Conduct Commission Act (NSW); or
(i) in the case of the Corruption and Crime Commission (WA)—means an investigation that the Commission is conducting in the performance of its functions under the Corruption, Crime and Misconduct Act (WA); or
(j) in the case of the Parliamentary Inspector of the Corruption and Crime Commission (WA)—means an investigation that the Parliamentary Inspector of the Corruption and Crime Commission (WA) is conducting in the performance of the Parliamentary Inspector’s functions under the Corruption, Crime and Misconduct Act (WA); or
(k) in the case of the Independent Commission Against Corruption (SA)—means an investigation that the Independent Commission Against Corruption (SA) is conducting in the performance of its functions under the Independent Commission Against Corruption Act (SA); or
(l) in the case of the Inspector of the Independent Commission Against Corruption (SA)—means an investigation that the Inspector of the Independent Commission Against Corruption (SA) is conducting in the performance of the Inspector’s functions under the Independent Commission Against Corruption Act (SA).
prescribed offence means:
(a) a serious offence, or an offence that was a serious offence when the offence was committed;
(b) an offence against subsection 7(1) or section 63; or
(ba) an offence against subsection 108(1) or section 133; or
(c) an offence against a provision of Part 10.6 of the Criminal Code; or
(d) any other offence punishable by imprisonment for life or for a period, or maximum period, of at least 3 years; or
(e) an ancillary offence relating to an offence of a kind referred to in paragraph (a), (b), (c) or (d) of this definition.
prescribed substance means:
(a) a substance that is a narcotic drug or psychotropic substance for the purposes of the Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990; or
(b) a controlled drug or border controlled drug within the meaning of Part 9.1 of the Criminal Code; or
(c) a controlled plant or border controlled plant within the meaning of Part 9.1 of the Criminal Code; or
(d) a controlled precursor or border controlled precursor within the meaning of Part 9.1 of the Criminal Code.
preservation notice means a domestic preservation notice or a foreign preservation notice.
preservation notice information has the meaning given by section 6EAA.
preserve, in relation to a stored communication, means maintain the integrity of:
(a) the stored communication; or
(b) a copy of the stored communication.
preventative detention order law means:
(a) Division 105 of the Criminal Code; or
(b) Part 2A of the Terrorism (Police Powers) Act 2002 (NSW); or
(c) Part 2A of the Terrorism (Community Protection) Act 2003 (Vic.); or
(d) the Terrorism (Preventative Detention) Act 2005 (Qld); or
(e) the Terrorism (Preventative Detention) Act 2006 (WA); or
(f) the Terrorism (Preventative Detention) Act 2005 (SA); or
(g) the Terrorism (Preventative Detention) Act 2005 (Tas.); or
(h) Part 2 of the Terrorism (Extraordinary Temporary Powers) Act 2006 (ACT); or
(i) Part 2B of the Terrorism (Emergency Powers) Act 2003 (NT).
Note: For when a purpose is connected with a preventative detention order law, see the definition of connected with.
proceeding means:
(a) a proceeding or proposed proceeding in a federal court or in a court of a State or Territory;
(b) a proceeding or proposed proceeding, or a hearing or proposed hearing, before a tribunal in Australia, or before any other body, authority or person in Australia having power to hear or examine evidence; or
(c) an examination or proposed examination by or before such a tribunal, body, authority or person.
Public Interest Advocate means a person declared under section 180X to be a Public Interest Advocate.
publicly‑listed ASIO number has the meaning given by subsection 6(3).
record (except when used in Schedule 1) means:
(a) in relation to information—a record or copy, whether in writing or otherwise, of the whole or a part of the information; or
(b) in relation to an interception, whether or not in contravention of subsection 7(1), of a communication:
(i) a record or copy, whether in writing or otherwise, of the whole or a part of the communication, being a record or copy made by means of the interception; or
(ii) a record or copy, whether in writing or otherwise, of the whole or a part of a record or copy that is, by virtue of any other application or applications of this definition, a record obtained by the interception.
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.
relates:
(a) a stored communication relates to a person only if it is:
(i) a stored communication that the person has made; or
(ii) a stored communication that another person has made and for which the person is the intended recipient; and
(b) a stored communication relates to a telecommunications service only if it has passed over a telecommunications system by way of the telecommunications service.
relevant offence, in relation to a Commonwealth agency, an eligible Commonwealth authority or an eligible authority of a State, means:
(a) in the case of the Australian Federal Police—a prescribed offence that is an offence against a law of the Commonwealth; or
(aa) in the case of the National Anti‑Corruption Commission—a prescribed investigation concerning conduct that involves a prescribed offence or possible conduct that would involve a prescribed offence; or
(b) in the case of the ACC—a prescribed offence to which a prescribed investigation relates; or
(ba) in the case of an eligible Commonwealth authority—a prescribed offence to which a prescribed investigation relates; or
(c) in the case of the Police Force of a State—a prescribed offence that is an offence against a law of that State; or
(d) in the case of the Crime Commission (NSW)—a prescribed offence that is an offence against a law of New South Wales and to which a prescribed investigation relates; or
(e) in the case of the Independent Commission Against Corruption (NSW)—a prescribed offence that is an offence against a law of New South Wales and to which a prescribed investigation relates; or
(ea) in the case of the Inspector of the Independent Commission Against Corruption (NSW)—a prescribed offence that is an offence against a law of New South Wales and to which a prescribed investigation relates; or
(eb) in the case of the IBAC (Vic.)—a prescribed offence that is an offence against a law of Victoria and to which a prescribed investigation relates; or
(ec) in the case of the Victorian Inspectorate—a prescribed offence that is an offence against the law of Victoria and to which a prescribed investigation relates; or
(f) in the case of the Crime and Corruption Commission (Qld)—a prescribed offence that is an offence against the law of Queensland and to which a prescribed investigation relates; or
(h) in the case of the Law Enforcement Conduct Commission (NSW)—a prescribed offence that is an offence against the law of New South Wales and to which a prescribed investigation relates; or
(ha) in the case of the Inspector of the Law Enforcement Conduct Commission (NSW)—a prescribed offence that is an offence against a law of New South Wales and to which a prescribed investigation relates; or
(k) in the case of the Corruption and Crime Commission (WA)—a prescribed offence that is an offence against the law of Western Australia and to which a prescribed investigation relates; or
(l) in the case of the Parliamentary Inspector of the Corruption and Crime Commission (WA)—a prescribed offence that is an offence against the law of Western Australia and to which a prescribed investigation relates; or
(m) in the case of the Independent Commission Against Corruption (SA)—a prescribed offence that is an offence against the law of South Australia and to which a prescribed investigation relates; or
(n) in the case of the Inspector of the Independent Commission Against Corruption (SA)—a prescribed offence that is an offence against the law of South Australia and to which a prescribed investigation relates.
relevant period, for a domestic preservation notice, means:
(a) for an historic domestic preservation notice—the period referred to in subparagraph 107H(1)(b)(i); and
(b) for an ongoing domestic preservation notice—the period referred to in subparagraph 107H(1)(b)(ii).
relevant staff member of an enforcement agency means:
(a) the head (however described) of the enforcement agency; or
(b) a deputy head (however described) of the enforcement agency; or
(c) any employee, member of staff or officer of the enforcement agency.
relevant statistics, in relation to applications of a particular kind, (except when used in Schedule 1) means all of the following:
(a) how many applications of that kind were made;
(b) how many applications of that kind were withdrawn or refused; and
(c) how many warrants were issued on applications of that kind.
renewal, in relation to a warrant issued to an agency in respect of a telecommunications service or person, means a warrant:
(a) that is issued to the agency in respect of that service or person; and
(b) the application for which was made while:
(i) the first‑mentioned warrant; or
(ii) a warrant that is, by virtue of any other application or applications of this definition, a renewal of the first‑mentioned warrant;
was still in force.
renewal application means an application by an agency for a warrant in respect of a telecommunications service or person, being an application made while a warrant issued to the agency in respect of that service or person is still in force.
responsible person for a computer network means:
(a) if an individual operates the network, or the network is operated on behalf of an individual—that individual; or
(b) if a body (whether or not a body corporate) operates the network, or the network is operated on behalf of a body (whether or not a body corporate):
(i) the head (however described) of the body, or a person acting as that head; or
(ii) if one or more positions are nominated by that head, or the person acting as that head, for the purposes of this subparagraph—each person who holds, or is acting in, such a position.
restricted record means a record other than a copy, that was obtained by means of an interception, whether or not in contravention of subsection 7(1), of a communication passing over a telecommunications system, but does not include a record of general computer access intercept information, a record of data disruption intercept information or a record of network activity warrant intercept information.
retained data means information, or documents, that a service provider is or has been required to keep under Part 5‑1A.
satellite‑based facility means a facility in a satellite.
secretary has the same meaning as in the Corporations Act 2001.
security has the same meaning as it has in the Australian Security Intelligence Organisation Act 1979.
security authority means an authority of the Commonwealth that has functions primarily relating to:
(a) security; or
(b) collection of foreign intelligence; or
(c) the defence of Australia; or
(d) the conduct of the Commonwealth’s international affairs.
senior executive AFP employee has the same meaning as in the Australian Federal Police Act 1979.
serious contravention has the meaning given by section 5E.
serious foreign contravention means:
(a) a contravention of a law of a foreign country that is punishable by a maximum penalty of:
(i) imprisonment for 3 years or more, imprisonment for life or the death penalty; or
(ii) a fine of an amount that is at least equivalent to 900 penalty units; or
(b) a crime within the jurisdiction of the ICC; or
(c) a War Crimes Tribunal offence.
serious offence has the meaning given by section 5D.
serious offender has the same meaning as in Division 395 of the Criminal Code.
serious Part 5.3 offence has the meaning given by section 105A.2 of the Criminal Code.
serious violent or sexual offence has the same meaning as in Division 395 of the Criminal Code.
service provider has the meaning given by subsection 187A(1).
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
(ii) commentary or opinion on, or analysis of, news, current affairs or a documentary.
special ACC investigation has the same meaning as in the ACC Act.
special ACC operation/investigation has the same meaning as in the ACC Act.
Special Register means the Special Register of Warrants kept under section 81C.
staff member, in relation to the Australian Federal Police, means an AFP employee who is not a member of the Australian Federal Police.
staff member of ASIC has the same meaning as staff member in the Australian Securities and Investments Commission Act 2001.
staff member of the NACC has the same meaning as in the National Anti‑Corruption Commission Act 2022.
State includes the Northern Territory.
stored communication (except when used in Schedule 1) means a communication that:
(a) is not passing over a telecommunications system; and
(b) is held on equipment that is operated by, and is in the possession of, a carrier; and
(c) cannot be accessed on that equipment, by a person who is not a party to the communication, without the assistance of an employee of the carrier.
stored communications warrant means a warrant issued under Chapter 3.
stored communications warrant information has the meaning given by section 6EB.
subscriber means a person who rents or uses a telecommunications service.
succeeding community safety supervision order has the meaning given by section 6UB.
succeeding Part 5.3 supervisory order has the meaning given by section 6U.
superior Court Judge means:
(a) a Judge of the Federal Court of Australia; or
(b) a Judge of the Federal Circuit and Family Court of Australia (Division 1).
telecommunications device means a terminal device that is capable of being used for transmitting or receiving a communication over a telecommunications system.
telecommunications network means a system, or series of systems, for carrying communications by means of guided or unguided electromagnetic energy or both, but does not include a system, or series of systems, for carrying communications solely by means of radiocommunication. This definition does not apply to Schedule 1.
telecommunications number means the address used by a carrier for the purposes of directing a communication to its intended destination and identifying the origin of the communication, and includes:
(a) a telephone number; and
(b) a mobile telephone number; and
(c) a unique identifier for a telecommunications device (for example, an electronic serial number or a Media Access Control address); and
(d) a user account identifier; and
(e) an internet protocol address; and
(f) an email address.
telecommunications service means a service for carrying communications by means of guided or unguided electromagnetic energy or both, being a service the use of which enables communications to be carried over a telecommunications system operated by a carrier but not being a service for carrying communications solely by means of radiocommunication.
telecommunications service warrant means an interception warrant issued or to be issued under section 9, 11A, 46 or 48.
telecommunications system means:
(a) a telecommunications network that is within Australia; or
(b) a telecommunications network that is partly within Australia, but only to the extent that the network is within Australia;
and includes equipment, a line or other facility that is connected to such a network and is within Australia.
telephone application (except when used in Schedule 1) means an application made by telephone for a Part 2‑5 warrant or a stored communications warrant.
Territory does not include the Northern Territory.
terrorist act has the same meaning as in Part 5.3 of the Criminal Code.
terrorist offender has the meaning given by section 105A.2 of the Criminal Code.
unexplained wealth legislation has the same meaning as in the Proceeds of Crime Act 2002.
Victorian Inspectorate means the Victorian Inspectorate established under the Victorian Inspectorate Act.
Victorian Inspectorate Act means the Victorian Inspectorate Act 2011 of Victoria.
Victorian Inspectorate officer means a person who is a Victorian Inspectorate Officer (within the meaning of the Victorian Inspectorate Act).
War Crimes Tribunal has the same meaning as Tribunal in the International War Crimes Tribunals Act 1995.
War Crimes Tribunal offence has the same meaning as Tribunal offence in the International War Crimes Tribunals Act 1995.
warrant means:
(a) except in Chapter 2—an interception warrant or a stored communications warrant; or
(b) in Chapter 2 (except in Part 2‑5)—an interception warrant (whether issued before or after the commencement of this definition), a general computer access warrant, a data disruption warrant, a network activity warrant or an ASIO computer access warrant; or
(c) in Part 2‑5—a Part 2‑5 warrant.
working day means any day except:
(a) a Saturday or a Sunday; or
(b) a day that is a public holiday in any State or Territory.
(2) Where a telecommunications service is provided by a carrier for the use of an employee or employees of the carrier (not being a telecommunications service to which that person is the subscriber or those persons are subscribers), the carrier shall, for the purposes of this Act, be deemed to be the subscriber to that telecommunications service.
(3) For the purposes of this Act, the question whether equipment, or a line or other facility, is connected to a telecommunications network is to be determined in the same manner as that question is determined for the purposes of the Telecommunications Act 1997.
(3A) Despite subsection 19(1) of the Acts Interpretation Act 1901, a reference in this Act to the Attorney‑General is a reference only to the Minister with that title.
Note: A reference in this Act to the Attorney‑General may include a reference to a person acting as the Attorney‑General: see subsection 19(4) of the Acts Interpretation Act 1901.
(4) However, a reference in this Act to the Attorney‑General shall, at a time when the Attorney‑General is absent from Australia or when, by reason of illness of the Attorney‑General or for any other reason, the Director‑General of Security cannot readily communicate with the Attorney‑General, be read as including a reference to a Minister who has been authorized in writing by the Attorney‑General to perform the functions of the Attorney‑General under this Act at such a time.
(4A) A reference in this Act to an employee of a carrier includes a reference to a person who is engaged by the carrier or whose services are made available to the carrier.
(4B) A reference in this Act to an employee of a security authority includes a reference to a person who is engaged by the security authority or whose services are made available to the security authority.
(5) For the purposes of the definition of telecommunications system in subsection (1), a telecommunications network shall be taken to be within Australia to the extent that the network is used for the purpose of carrying communications:
(a) over an earth‑based facility within Australia, or between earth‑based facilities within Australia;
(b) from an earth‑based facility within Australia to a satellite‑based facility, but only to the extent that the next earth‑based facility to which the communications will be carried is an earth‑based facility within Australia;
(c) from a satellite‑based facility to an earth‑based facility within Australia, but only to the extent that the last earth‑based facility from which the communications were carried was an earth‑based facility within Australia; and
(d) over a satellite‑based facility, or between satellite‑based facilities, but only to the extent that:
(i) the last earth‑based facility from which the communications were carried was an earth‑based facility within Australia; and
(ii) the next earth‑based facility to which the communications will be carried is an earth‑based facility within Australia;
whether or not the communications originated in Australia, and whether or not the final destination of the communications is within Australia.
(6) For the purposes of the definition of foreign intelligence in subsection (1), Australia includes the external Territories.
Permitted purposes—Law Enforcement Conduct Commission (NSW)
(7) For the purposes of subparagraph (e)(i) of the definition of permitted purpose in subsection (1), this subsection applies to conduct that:
(a) both:
(i) involves a police officer, administrative employee or Crime Commission (NSW) officer; and
(ii) the Law Enforcement Conduct Commission (NSW) has decided is (or could be) serious misconduct or officer maladministration that is serious maladministration and should be investigated; or
(b) both:
(i) involves the Commissioner of Police or a Deputy Commissioner of Police; and
(ii) is (or could be) police misconduct or officer maladministration; or
(c) both:
(i) involves the Crime Commissioner or an Assistant Commissioner of the Crime Commission (NSW); and
(ii) is (or could be) Crime Commission (NSW) officer misconduct or officer maladministration; or
(d) both Houses of the Parliament of New South Wales refer to the Commission for investigation under section 196 of the Law Enforcement Conduct Commission Act (NSW).
(8) An expression used in subsection (7) of this section and in the Law Enforcement Conduct Commission Act (NSW) has the same meaning in that subsection as in that Act.
5AA Eligible Commonwealth authority declarations
The Minister may, by notice published in the Gazette, declare a Commonwealth Royal Commission to be an eligible Commonwealth authority for the purposes of this Act if the Minister is satisfied that the Royal Commission is likely to inquire into matters that may involve the commission of a prescribed offence.
5AB Authorised officers
Authorised officers of an enforcement agency
(1) The head (however described) of an enforcement agency may, by writing, authorise a management office or management position in the enforcement agency for the purposes of subparagraph (b)(iii) of the definition of authorised officer in subsection 5(1).
Authorised officers of the Australian Federal Police
(1A) The Commissioner of Police may authorise, in writing, a senior executive AFP employee who is a member of the Australian Federal Police to be an authorised officer.
(2) A copy of an authorisation must be given to the Communications Access Coordinator:
(a) in the case of an authorisation made under subsection (1)—by the head of the enforcement agency; and
(b) in the case of an authorisation made under subsection (1A)—by the Commissioner of Police.
Authorisations are not legislative instruments
(3) An authorisation made under this section is not a legislative instrument.
5AC Authorisation of certifying officers
(1) The Commissioner of Police may authorise, in writing, a senior executive AFP employee who is a member of the Australian Federal Police to be a certifying officer of the Australian Federal Police.
(2) The National Anti‑Corruption Commissioner may authorise, in writing, a staff member of the National Anti‑Corruption Commission who is an SES employee to be a certifying officer of the National Anti‑Corruption Commission.
(3) The Chief Executive Officer of the ACC may authorise, in writing, a member of the staff of the ACC who is an SES employee or acting SES employee to be a certifying officer of the ACC.
(4) The Commissioner of a Police Force of a State may authorise, in writing, an officer of the police force of the State whose rank is equivalent to that of a senior executive AFP employee who is a member of the Australian Federal Police to be a certifying officer of the Police Force of the State.
(5) The Commissioner of the Crime Commission (NSW) may authorise, in writing, a member of the staff of the Crime Commission (NSW) who occupies an office or position at an equivalent level to that of a Public Service senior executive (within the meaning of the Government Sector Employment Act 2013 (NSW)) to be a certifying officer of the Crime Commission (NSW).
(6) The Chief Commissioner of the Independent Commission Against Corruption (NSW) may authorise, in writing, an officer of the Independent Commission Against Corruption (NSW) who occupies an office or position at an equivalent level to that of a Public Service senior executive (within the meaning of the Government Sector Employment Act 2013 (NSW)) to be a certifying officer of the Independent Commission Against Corruption (NSW).
(7) The Commissioner of the IBAC (Vic.) may authorise, in writing, an IBAC (Vic.) officer who occupies an office or position at an equivalent level to that of an executive (within the meaning of the Public Administration Act 2004 of Victoria) to be a certifying officer of the IBAC (Vic.).
(8) The Chief Commissioner of the Law Enforcement Conduct Commission (NSW) may authorise, in writing:
(a) an Assistant Commissioner of the Commission; or
(b) a member of the staff of the Law Enforcement Conduct Commission (NSW) who occupies an office or position at an equivalent level to that of a Public Service senior executive (within the meaning of the Government Sector Employment Act 2013 (NSW));
to be a certifying officer of the Commission.
(9) The Commissioner of the Corruption and Crime Commission (WA) may authorise, in writing, an officer of the Corruption and Crime Commission (WA) who occupies an office or position at an equivalent level to that of a senior executive officer within the meaning of the Public Sector Management Act 1994 of Western Australia to be a certifying officer of the Corruption and Crime Commission (WA).
(9A) The Commissioner of the Independent Commission Against Corruption (SA) may authorise, in writing, a member of the staff of the Independent Commission Against Corruption (SA) who occupies an office or position at an equivalent level to that of an executive employee (within the meaning of the Public Sector Act 2009 of South Australia) to be a certifying officer of the Independent Commission Against Corruption (SA).
(10) The chief executive officer of any other agency may authorise, in writing, an officer of the agency (by whatever name called) who holds, or is acting in, an office or position in the agency which is involved in the management of the agency to be a certifying officer of the agency.
5AD Authorisation of certifying person
The Director‑General of Security may authorise, in writing, a senior position‑holder (within the meaning of the Australian Security Intelligence Organisation Act 1979) to be a certifying person.
5AE Authorisation of members of the staff of a Commonwealth Royal Commission
A sole Commissioner or a member of a Commonwealth Royal Commission may authorise, in writing, a person assisting the Commission to be a member of the staff of the Commission for the purposes of this Act.
5A Communicating etc. certain information
For the purposes of this Act (other than Schedule 1), a person who gives to another person, makes use of, makes a record of, or produces in evidence in a proceeding, a record (in this section called the relevant record) obtained by an interception, whether or not in contravention of subsection 7(1), of a communication shall be taken to communicate to the other person, make use of, make a record of, or give in evidence in that proceeding, as the case may be, so much of the information obtained by the interception as can be derived from the relevant record.
5B Exempt proceedings
(1) A reference in this Act to an exempt proceeding is a reference to:
(a) a proceeding by way of a prosecution for a prescribed offence; or
(b) a proceeding for the confiscation or forfeiture of property, or for the imposition of a pecuniary penalty, in connection with the commission of a prescribed offence; or
(ba) a proceeding under the Spam Act 2003; or
(bb) a proceeding under, or a proceeding relating to a matter arising under, Division 104 (control orders) or Division 105A (post‑sentence orders) of the Criminal Code; or
(bba) a proceeding under, or a proceeding relating to a matter arising under, Division 395 of the Criminal Code (community safety orders); or
(bc) a proceeding under, or a proceeding relating to a matter arising under, a preventative detention order law, so far as the proceeding relates to a preventative detention order (within the meaning of that law); or
(bd) a proceeding under, or a proceeding relating to a matter arising under, a post‑sentence detention law or a post‑sentence supervision law; or
(be) a proceeding under, or a proceeding relating to a matter arising under, the main unexplained wealth provisions; or
(bf) a proceeding under, or a proceeding relating to a matter arising under, the unexplained wealth legislation of a participating State, the Australian Capital Territory or the Northern Territory; or
(c) a proceeding for the taking of evidence pursuant to section 43 of the Extradition Act 1988, in so far as the proceeding relates to a prescribed offence; or
(ca) a proceeding under, or a proceeding relating to a matter arising under, an organised crime control law; or
(d) a proceeding for the extradition of a person from a State or Territory to another State or Territory, in so far as the proceeding relates to a prescribed offence; or
(da) a proceeding by way of a coroner’s inquest if, in the opinion of the coroner, the event that is the subject of the inquest may have resulted from the commission of a prescribed offence; or
(e) a police disciplinary proceeding; or
(ea) a proceeding in so far as it relates to:
(i) a decision by the Commissioner of Police to terminate the employment of an AFP employee or the appointment of a special member of the Australian Federal Police; or
(ii) a decision by the Commissioner of a Police Force of a State to terminate the appointment of an officer or member of staff of that Police Force; or
(eb) a proceeding in so far as it is, or relates to, disciplinary or legal action (within the meaning of section 6S) that is in relation to an eligible staff member (within the meaning of that section) of the Australian Federal Police or the ACC; or
(f) any other proceeding (not being a proceeding by way of a prosecution for an offence) in so far as it relates to alleged misbehaviour, or alleged improper conduct, of an officer of the Commonwealth or of a State; or
(g) a proceeding for the recovery of an amount due to a carrier in connection with the supply of a telecommunications service;
(h) a proceeding under section 13 of the Mutual Assistance in Criminal Matters Act 1987 in relation to a criminal matter (within the meaning of that Act) that concerns an offence, against the laws of the foreign country that made the request resulting in the proceeding, that is punishable by imprisonment for life or for a period, or maximum period, of at least 3 years; or
(haa) a proceeding under Division 5 of Part 4 of the International Criminal Court Act 2002; or
(hab) a proceeding before the International Criminal Court sitting in Australia under Part 5 of the International Criminal Court Act 2002; or
(ha) a proceeding of an eligible Commonwealth authority; or
(hb) a proceeding of the Independent Commission Against Corruption (NSW); or
(hc) a proceeding of the Inspector of the Independent Commission Against Corruption (NSW); or
(hd) a proceeding in relation to an application under subsection 34B(1) of the Australian Crime Commission Act 2002 in respect of contempt of the Australian Crime Commission; or
(i) a proceeding of the IBAC (Vic.); or
(iaa) a proceeding of the Victorian Inspectorate; or
(ia) a proceeding of the Corruption and Crime Commission (WA); or
(ib) a proceeding of the Parliamentary Inspector of the Corruption and Crime Commission (WA); or
(j) a proceeding under Division 1 of Part 4 of the International War Crimes Tribunals Act 1995; or
(k) a proceeding of the Law Enforcement Conduct Commission (NSW); or
(ka) a proceeding of the Inspector of the Law Enforcement Conduct Commission (NSW); or
(kb) a proceeding of the Crime and Corruption Commission (Qld); or
(kc) a proceeding of the Independent Commission Against Corruption (SA); or
(kca) a proceeding of the Inspector of the Independent Commission Against Corruption (SA); or
(kd) a NACC Act process (within the meaning of the National Anti‑Corruption Commission Act 2022); or
(l) a proceeding by way of a bail application if the application relates to a proceeding by way of a prosecution for a prescribed offence; or
(m) a proceeding by way of review of a decision to refuse such a bail application; or
(n) a proceeding by way of a review of a decision to grant such a bail application.
Note: Paragraphs (l), (m) and (n) were inserted as a response to the decision of the Court of Appeal of New South Wales in Director of Public Prosecutions v Serratore (1995) 132 ALR 461.
(2) Without limiting subsection (1), a reference in Chapter 3 to an exempt proceeding includes a reference to:
(a) a proceeding by way of a prosecution for an offence punishable:
(i) by imprisonment for a period, or a maximum period, of at least 12 months; or
(ii) by a fine, or a maximum fine, of at least 60 penalty units if the offence is committed by an individual; or
(iii) if the offence cannot be committed by an individual—by a fine, or a maximum fine, of at least 300 penalty units; or
(b) a proceeding for the confiscation or forfeiture of property, or for the imposition of a pecuniary penalty, in connection with the commission of such an offence; or
(c) a proceeding for the taking of evidence pursuant to section 43 of the Extradition Act 1988, in so far as the proceeding relates to such an offence; or
(d) a proceeding for the extradition of a person from a State or Territory to another State or Territory, in so far as the proceeding relates to such an offence; or
(e) a proceeding by way of a coroner’s inquest if, in the opinion of the coroner, the event that is the subject of the inquest may have resulted from the commission of such an offence; or
(f) a proceeding for recovery of a pecuniary penalty for a contravention that would, if proved, render the person committing the contravention liable to:
(i) a pecuniary penalty, or a maximum pecuniary penalty, of at least 60 penalty units if the contravention is committed by an individual; or
(ii) if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 300 penalty units.
5C Information or question relevant to inspection by Ombudsman
(1) For the purposes of this Act, information or a question is relevant to an inspection under Part 2‑7 or Chapter 4A of an agency’s records if the information or question is about:
(a) in any case:
(i) the location;
(ii) the making, compilation or keeping; or
(iii) the accuracy or completeness;
of any of those records;
(b) in any case—any matter to which any of those records relates; or
(c) if the Ombudsman suspects on reasonable grounds that an officer of the agency has contravened this Act—any matter relating to the suspected contravention.
(2) Nothing in subsection (1) limits the generality of a reference in this Act to information, or to a question, that is relevant to an inspection of an agency’s records.
5D Serious offences
General types of serious offences
(1) An offence is a serious offence if it is:
(a) a murder, or an offence of a kind equivalent to murder; or
(b) a kidnapping, or an offence of a kind equivalent to kidnapping; or
(c) an offence against Division 307 of the Criminal Code; or
(d) an offence constituted by conduct involving an act or acts of terrorism; or
(e) an offence against:
(i) Subdivision A of Division 72 of the Criminal Code; or
(ia) Subdivision B of Division 80 of the Criminal Code; or
(ib) section 80.2C of the Criminal Code; or
(ic) Division 82 of the Criminal Code (sabotage); or
(id) Division 83 of the Criminal Code (other threats to security); or
(ie) Division 91 of the Criminal Code (espionage); or
(if) Division 92 of the Criminal Code (foreign interference); or
(ig) Division 92A of the Criminal Code (theft of trade secrets involving foreign government principal); or
(ii) Division 101 of the Criminal Code; or
(iii) Division 102 of the Criminal Code; or
(iv) Division 103 of the Criminal Code; or
(v) section 104.27 of the Criminal Code; or
(va) section 105A.18A of the Criminal Code; or
(vi) Division 119 of the Criminal Code; or
(vii) Division 122 of the Criminal Code (secrecy of information); or
(viii) section 137.1A of the Criminal Code (aggravated offence for giving false or misleading information); or
(f) except for the purposes of an application for a warrant by an agency other than the ACC, an offence in relation to which the ACC is conducting a special ACC investigation.
(2) An offence is also a serious offence if:
(a) it is an offence punishable by imprisonment for life or for a period, or maximum period, of at least 7 years; and
(b) the particular conduct constituting the offence involved, involves or would involve, as the case requires:
(i) loss of a person’s life or serious risk of loss of a person’s life; or
(ii) serious personal injury or serious risk of serious personal injury; or
(iii) serious damage to property in circumstances endangering the safety of a person; or
(iiia) serious arson; or
(iv) trafficking in prescribed substances; or
(v) serious fraud; or
(vi) serious loss to the revenue of the Commonwealth, a State or the Australian Capital Territory; or
(vii) bribery or corruption of, or by:
(A) an officer of the Commonwealth; or
(B) an officer of a State; or
(C) an officer of a Territory; or
Offences involving planning and organisation
(3) An offence is also a serious offence if it is an offence punishable by imprisonment for life or for a period, or maximum period, of at least 7 years, where the offence:
(a) involves 2 or more offenders and substantial planning and organisation; and
(b) involves, or is of a kind that ordinarily involves, the use of sophisticated methods and techniques; and
(c) is committed, or is of a kind that is ordinarily committed, in conjunction with other offences of a like kind; and
(d) consists of, or involves, any of the following:
(i) theft;
(ii) handling of stolen goods;
(iii) tax evasion;
(iv) currency violations;
(v) extortion;
(vi) bribery or corruption of, or by:
(A) an officer of the Commonwealth; or
(B) an officer of a State; or
(C) an officer of a Territory;
(vii) bankruptcy violations;
(viii) company violations;
(ix) harbouring criminals;
(x) dealings in firearms or armaments;
(xi) a sexual offence against a person who is under 16;
(xii) an immigration offence.
Offences relating to criminal groups
(3AA) An offence is also a serious offence if it is an offence against section 93T of the Crimes Act 1900 of New South Wales.
Offences relating to people smuggling, slavery, sexual servitude, deceptive recruiting and trafficking in persons etc.
(3A) An offence is also a serious offence if it is an offence against:
(a) any of the following provisions of the Criminal Code:
(i) section 73.1, 73.2, 73.3, 73.3A, 73.8, 73.9, 73.10 or 73.11;
(ii) section 270.3, 270.5, 270.6A, 270.7, 270.7B or 270.7C (slavery or slavery‑like offences);
(iii) section 271.2, 271.3, 271.4, 271.5, 271.6 or 271.7 (trafficking in persons);
(iv) section 271.7B, 271.7C, 271.7D or 271.7E (organ trafficking);
(v) section 271.7F or 271.7G (harbouring victims); or
(b) section 233A, 233B, 233C, 233D, 233E, 234 or 234A of the Migration Act 1958.
Sexual offences against children and offences involving child abuse material or harm to children
(3B) An offence is also a serious offence if:
(a) it is an offence against Division 272, 273 or 273A, Subdivision B or C of Division 471, or Subdivision D or F of Division 474, of the Criminal Code; or
(b) the particular conduct constituting the offence otherwise involved, involves or would involve:
(i) the production, publication, possession, supply or sale of, or other dealing in, child abuse material (within the meaning of Part 10.6 of the Criminal Code); or
(ii) consenting to or procuring the employment of a child, or employing a child, in connection with such material.
Money laundering offences etc.
(4) An offence is also a serious offence if it is an offence against any of the following provisions:
(a) Part 10.2 of the Criminal Code (other than section 400.9);
(b) Part 4AC of the Crimes Act 1900 of New South Wales;
(c) section 194, 195 or 195A of the Crimes Act 1958 of Victoria;
(d) section 64 of the Crimes (Confiscation of Profits) Act 1989 of Queensland;
(e) section 563A of The Criminal Code of Western Australia;
(f) section 138 of the Criminal Law Consolidation Act 1935 of South Australia;
(g) section 67 of the Crime (Confiscation of Profits) Act 1993 of Tasmania;
(h) section 74 of the Proceeds of Crime Act 1991 of the Australian Capital Territory;
(i) Division 3A of Part VII of Schedule I to the Criminal Code Act 1983 (NT).
Cybercrime offences etc.
(5) An offence is also a serious offence if it is an offence against any of the following provisions:
(a) Part 10.7 of the Criminal Code;
(b) section 308C, 308D, 308E, 308F, 308G, 308H or 308I of the Crimes Act 1900 of New South Wales;
(c) section 247B, 247C, 247D, 247E, 247F, 247G or 247H of the Crimes Act 1958 of Victoria;
(d) a provision of a law of a State (other than New South Wales or Victoria) that corresponds to a provision covered by paragraph (a), (b) or (c);
(e) a provision of a law of a Territory that corresponds to a provision covered by paragraph (a), (b) or (c);
(f) section 440A of The Criminal Code of Western Australia.
Serious drug offences
(5A) An offence is also a serious offence if it is an offence against Part 9.1 of the Criminal Code (other than section 308.1 or 308.2).
Cartel offences
(5B) An offence is also a serious offence if it is:
(a) an offence against section 44ZZRF or 44ZZRG of the Competition and Consumer Act 2010; or
(b) an offence under subsection 79(1) of the Competition and Consumer Act 2010 that relates to an offence covered by paragraph (a); or
(c) an offence against section 44ZZRF or 44ZZRG of the text set out in Part 1 of Schedule 1 to the Competition and Consumer Act 2010, so far as that section applies as a law of a State, the Northern Territory or the Australian Capital Territory; or
(d) an offence under subsection 79(1) of the Competition and Consumer Act 2010 (so far as that subsection applies as a law of a State, the Northern Territory or the Australian Capital Territory) that relates to an offence covered by paragraph (c).
Note: Offences covered by paragraph (c) or (d) form part of the Competition Code of the State or Territory concerned.
Market misconduct
(5C) An offence is also a serious offence if it is an offence against any of the following provisions of the Corporations Act 2001:
(a) section 1041A;
(b) subsection 1041B(1);
(c) subsection 1041C(1);
(d) section 1041D;
(e) subsection 1041E(1);
(f) subsection 1041F(1);
(g) section 1041G;
(h) subsection 1043A(1);
(i) subsection 1043A(2).
Offences connected with other serious offences
(6) An offence is also a serious offence if it is an offence constituted by:
(a) aiding, abetting, counselling or procuring the commission of; or
(b) being, by act or omission, in any way, directly or indirectly, knowingly concerned in, or party to, the commission of; or
(c) conspiring to commit;
an offence that is a serious offence under any of the preceding subsections.
(7) An offence is also a serious offence if it is an offence constituted by receiving or assisting a person who is, to the offender’s knowledge, guilty of a serious offence mentioned in subsection (1), in order to enable the person to escape punishment or to dispose of the proceeds of the offence.
(8) An offence is also a serious offence if it is an offence against any of the following provisions:
(a) section 131.1, 135.1, 142.1 or 142.2, subsection 148.2(3), or section 268.112 of the Criminal Code;
(b) section 35, 36, 36A, 37, 39, 41, 42, 43, 46, 46A or 47 of the Crimes Act 1914.
Offences relating to criminal associations and organisations
(8A) An offence is also a serious offence if it is an offence against Division 390 of the Criminal Code.
Offences relating to criminal organisations
(9) An offence is also a serious offence if:
(a) the particular conduct constituting the offence involved, involves or would involve, as the case requires:
(i) associating with a criminal organisation, or a member of a criminal organisation; or
(ii) contributing to the activities of a criminal organisation; or
(iii) aiding, abetting, counselling or procuring the commission of a prescribed offence for a criminal organisation; or
(iv) being, by act or omission, in any way, directly or indirectly, knowingly concerned in, or party to, the commission of a prescribed offence for a criminal organisation; or
(v) conspiring to commit a prescribed offence for a criminal organisation; and
(b) if the offence is covered by subparagraph (a)(i)—the conduct constituting the offence was engaged in, or is reasonably suspected of having been engaged in, for the purpose of supporting the commission of one or more prescribed offences by the organisation or its members; and
(c) if the offence is covered by subparagraph (a)(ii)—the conduct constituting the offence was engaged in, or is reasonably suspected of having been engaged in, for the purpose of enhancing the ability of the organisation or its members to commit or facilitate the commission of one or more prescribed offences.
5E Serious contraventions
(1) For the purposes of this Act, a serious contravention is a contravention of a law of the Commonwealth, a State or a Territory that:
(a) is a serious offence; or
(b) is an offence punishable:
(i) by imprisonment for a period, or a maximum period, of at least 3 years; or
(ii) if the offence is committed by an individual—by a fine, or a maximum fine, of at least 180 penalty units; or
(iii) if the offence cannot be committed by an individual—by a fine, or a maximum fine, of at least 900 penalty units; or
(c) could, if established, render the person committing the contravention liable:
(i) if the contravention were committed by an individual—to pay a pecuniary penalty of 180 penalty units or more, or to pay an amount that is the monetary equivalent of 180 penalty units or more; or
(ii) if the contravention cannot be committed by an individual—to pay a pecuniary penalty of 900 penalty units or more, or to pay an amount that is the monetary equivalent of 900 penalty units or more.
(2) Except so far as the contrary intention appears, a contravention, or a contravention of a particular kind, is taken, for the purposes of this Act, to be a contravention, or to be a contravention of that kind, as the case may be, that:
(a) has been committed or is being committed; or
(b) is suspected on reasonable grounds of having been committed, of being committed or of being likely to be committed.
(3) To avoid doubt, a reference in this section to a number of penalty units in relation to a contravention of a law of a State or a Territory includes a reference to an amount of a fine or pecuniary penalty that is equivalent, under section 4AA of the Crimes Act 1914, to that number of penalty units.
5F When a communication is passing over a telecommunications system
For the purposes of this Act (other than Schedule 1), a communication:
(a) is taken to start passing over a telecommunications system when it is sent or transmitted by the person sending the communication; and
(b) is taken to continue to pass over the system until it becomes accessible to the intended recipient of the communication.
5G The intended recipient of a communication
For the purposes of this Act (other than Schedule 1), the intended recipient of a communication is:
(a) if the communication is addressed to an individual (either in the individual’s own capacity or in the capacity of an employee or agent of another person)—the individual; or
(b) if the communication is addressed to a person who is not an individual—the person; or
(c) if the communication is not addressed to a person—the person who has, or whose employee or agent has, control over the telecommunications service to which the communication is sent.
5H When a communication is accessible to the intended recipient
(1) For the purposes of this Act, a communication is accessible to its intended recipient if it:
(a) has been received by the telecommunications service provided to the intended recipient; or
(b) is under the control of the intended recipient; or
(c) has been delivered to the telecommunications service provided to the intended recipient.
(2) Subsection (1) does not limit the circumstances in which a communication may be taken to be accessible to its intended recipient for the purposes of this Act.
6 Interception of a communication
(1) For the purposes of this Act (other than Schedule 1), but subject to this section, interception of a communication passing over a telecommunications system consists of listening to or recording, by any means, such a communication in its passage over that telecommunications system without the knowledge of the person making the communication.
Communications to or from emergency service facilities
(2A) An emergency service facility is premises that are declared by the Minister, by written instrument, to be an emergency service facility.
(2B) The Minister may declare premises to be an emergency service facility if the Minister is satisfied that the premises are operated by:
(a) a police force or service of the Commonwealth, of a State or of the Australian Capital Territory; or
(b) a fire service of a State or of the Australian Capital Territory; or
(c) an ambulance service of a State or of the Australian Capital Territory; or
(d) a service for despatching, or referring matters for the attention of, a force or service referred to in paragraph (a), (b) or (c);
to enable that force or service, or another force or service, to deal with a request for assistance in an emergency.
(2C) A declaration by the Minister under subsection (2B) is not a legislative instrument.
(2D) If the Minister makes a declaration under subsection (2B), the Minister must, by legislative instrument, specify:
(a) the name of the force or service operating the premises to which the declaration relates; and
(b) the geographical region in which those premises are located.
(2E) If a House of the Parliament disallows, in accordance with section 42 of the Legislation Act 2003, a legislative instrument made under subsection (2D), the declaration to which the instrument relates is taken to have been revoked at the time of the disallowance.
(2F) If a person who is lawfully engaged in duties relating to the receiving and handling of communications to or from an emergency service facility listens to or records a communication passing over a telecommunications system to or from the emergency service facility, the listening or recording does not, for the purposes of this Act, constitute an interception of the communication.
(2G) Subsection (2F) only applies in relation to an emergency service facility if signs notifying persons that communications to or from the facility may be listened to or recorded are clearly visible at each entrance to the facility.
(2H) If:
(a) an inspector under section 284 of the Radiocommunications Act 1992 is lawfully engaged in performing spectrum management functions of the Australian Communications and Media Authority under the Australian Communications and Media Authority Act 2005 or the Radiocommunications Act 1992; and
(b) while performing those spectrum management functions, the inspector incidentally listens to or records a communication passing over a telecommunications system;
the listening or recording does not, for the purposes of this Act, constitute an interception of the communication.
(2J) If:
(a) an inspector under section 284 of the Radiocommunications Act 1992 is lawfully engaged in exercising powers under Part 2 of the Regulatory Powers (Standard Provisions) Act 2014 as it applies in relation to:
(i) a provision mentioned in subsection 284A(1) of the Radiocommunications Act 1992; or
(ii) information mentioned in subsection 284A(2) of the Radiocommunications Act 1992; and
(b) while exercising those powers, the inspector incidentally listens to or records a communication passing over a telecommunications system;
the listening or recording does not, for the purposes of this Act, constitute an interception of the communication.
(2K) If:
(a) an inspector under section 284 of the Radiocommunications Act 1992 is lawfully engaged in exercising powers under Part 3 of the Regulatory Powers (Standard Provisions) Act 2014 as it applies in relation to a provision mentioned in subsection 284B(1) of the Radiocommunications Act 1992; and
(b) while exercising those powers, the inspector incidentally listens to or records a communication passing over a telecommunications system;
the listening or recording does not, for the purposes of this Act, constitute an interception of the communication.
Communications to publicly‑listed ASIO numbers
(3) A publicly‑listed ASIO number is a telephone number that:
(a) enables members of the public to contact the Organisation; and
(b) is listed in:
(i) a telephone directory; or
(ii) a telephone number database;
that is available to the public.
(4) If:
(a) a person makes a call to a publicly‑listed ASIO number; and
(b) another person who is lawfully engaged in duties relating to the receiving and handling of communications to that number listens to or records a communication passing over a telecommunications system in the course of that call;
the listening or recording does not, for the purposes of this Act, constitute the interception of the communication.
6AAA When a computer network is appropriately used by an employee etc. of a Commonwealth agency etc.
For the purposes of this Act, if a computer network is operated by, or on behalf of, a Commonwealth agency, security authority or eligible authority of a State, the network is appropriately used by an employee, office holder or contractor of the agency or authority if:
(a) the employee, office holder or contractor has undertaken, in writing, to use the network in accordance with any conditions specified, in writing, by the agency or authority; and
(b) those conditions are reasonable; and
(c) the employee, office holder or contractor complies with those conditions when using the network.
6AA Accessing a stored communication
For the purposes of this Act, accessing a stored communication consists of listening to, reading or recording such a communication, by means of equipment operated by a carrier, without the knowledge of the intended recipient of the communication.
6A Investigation of an offence
(1) A reference in this Act to the investigation by an agency, or by an eligible authority of a State, of an offence is a reference to:
(a) in the case of the Australian Federal Police—an investigation of that offence, in the course of the performance by the Australian Federal Police of its functions, by members of the Australian Federal Police;
(b) in the case of a Police Force of a State—an investigation of that offence, in the course of the performance by that Police Force of its functions, by officers of that Police Force; or
(c) in the case of the following eligible authorities or agencies, a prescribed investigation, in so far as it relates to that offence:
(ia) the National Anti‑Corruption Commission;
(i) the ACC;
(ii) the Crime Commission (NSW);
(iii) the Crime and Corruption Commission (Qld);
(v) the Independent Commission Against Corruption (NSW);
(va) the Inspector of the Independent Commission Against Corruption (NSW);
(vi) the Law Enforcement Conduct Commission (NSW);
(vii) the Inspector of the Law Enforcement Conduct Commission (NSW);
(viii) the IBAC (Vic.);
(ix) the Victorian Inspectorate;
(x) the Corruption and Crime Commission (WA);
(xi) the Parliamentary Inspector of the Corruption and Crime Commission (WA);
(xii) the Independent Commission Against Corruption (SA);
(xiii) the Inspector of the Independent Commission Against Corruption (SA).
(2) A reference in this Act to an investigation, in relation to an offence, is, in the case of an offence that is suspected on reasonable grounds of being likely to be committed, a reference to the investigation of the likely commission of that offence.
6B Involvement in an offence
For the purposes of this Act, a person shall be taken to be involved in an offence if, and only if, the person:
(a) has committed, or is committing, the offence; or
(b) is suspected on reasonable grounds of having committed, of committing, or of being likely to commit, the offence.
6C Issue of warrant to agency or eligible authority
For the purposes of this Act, a warrant issued on an application by an agency or an officer of an agency, or on an application by an eligible authority of a State, shall be taken to be issued to that agency or eligible authority, as the case may be.
6D Judges
(1) In this Act, unless the contrary intention appears:
eligible Judge (except when used in Schedule 1) means a Judge:
(a) in relation to whom a consent under subsection (2) and a declaration under subsection (3) are in force; and
(b) in relation to a warrant applied for by the National Anti‑Corruption Commission—who is a superior Court Judge.
Judge means a person who is a Judge of a court created by the Parliament.
(2) A Judge may by writing consent to be nominated by the Attorney‑General under subsection (3).
(3) The Attorney‑General may by writing declare Judges in relation to whom consents are in force under subsection (2) to be eligible Judges for the purposes of this Act (other than Schedule 1).
(4) An eligible Judge has, in relation to the performance or exercise of a function or power conferred on an eligible Judge by this Act (other than Schedule 1), the same protection and immunity as a Justice of the High Court has in relation to proceedings in the High Court.
6DA Nominated ART members
(1) The Attorney‑General may, by writing, nominate a person who holds one of the following appointments to the Administrative Review Tribunal to issue warrants (except to the National Anti‑Corruption Commission) under Part 2‑5:
(a) Deputy President;
(b) senior member;
(c) general member.
(2) Despite subsection (1), the Attorney‑General must not nominate a person who holds an appointment as a senior member on a sessional basis or a general member of the Tribunal unless the person:
(a) is enrolled as a legal practitioner of the High Court, of another federal court or of the Supreme Court of a State or of the Australian Capital Territory; and
(b) has been so enrolled for not less than 5 years.
(3) A nomination ceases to have effect if:
(a) the nominated ART member ceases to hold an appointment of a kind set out in subsection (1); or
(b) the Attorney‑General, by writing, withdraws the nomination.
(4) A nominated ART member has, in performing a function of or connected with, issuing a warrant under Part 2‑5, the same protection and immunity as a Justice of the High Court has in relation to proceedings in the High Court.
6DB Issuing authorities
(1) The Attorney‑General may, by writing, appoint as an 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 Review Tribunal as Deputy President, senior member or general 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.
(2) A person who is:
(a) a judge of a court created by the Parliament; or
(c) a magistrate;
may, by writing, consent to be appointed by the Attorney‑General under subsection (1).
(3) A person’s appointment ceases to have effect if:
(a) the person ceases to be a person whom the Attorney‑General could appoint under this section; or
(b) the Attorney‑General, by writing, revokes the appointment.
(3A) An appointment under subsection (1) has no effect for the purposes of Schedule 1.
(4) An issuing authority has, in relation to the performance or exercise of a function or power conferred on an issuing authority by this Act (other than Schedule 1), the same protection and immunity as a Justice of the High Court has in relation to proceedings in the High Court.
6DC Part 4‑1 issuing authorities
(1) The Attorney‑General 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 Review Tribunal as Deputy President, senior member or general 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.
(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 Attorney‑General under subsection (1).
(3) A person’s appointment ceases to have effect if:
(a) the person ceases to be a person whom the Attorney‑General could appoint under this section; or
(b) the Attorney‑General, by writing, revokes the appointment.
(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 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.
6E Lawfully intercepted information
(1) Subject to subsections (2), (2A) and (3), a reference in this Act to lawfully intercepted information is a reference to information obtained (whether before or after the commencement of this section) by intercepting, otherwise than in contravention of subsection 7(1), a communication passing over a telecommunications system.
(2) A reference in this Act to lawfully intercepted information that was originally obtained by an agency, or by an eligible authority of a State, is a reference to:
(a) information obtained, whether before or after the commencement of this section, by intercepting a communication under a warrant issued to the agency or authority; or
(b) information communicated to the agency or authority in accordance with section 65A or 63E.
(2A) A reference in this Act to lawfully intercepted information includes a reference to information obtained by accessing a stored communication under a section 31A authorisation.
(3) A reference in this Act to lawfully intercepted information does not include a reference to information obtained in accordance with an international production order (within the meaning of Schedule 1).
6EA Interception warrant information
A reference in this Act to interception warrant information is a reference to:
(a) information about any of the following:
(i) an application for an interception warrant;
(ii) the issue of an interception warrant;
(iii) the existence or non‑existence of an interception warrant;
(iv) the expiry of an interception warrant; or
(b) any other information that is likely to enable the identification of:
(i) the telecommunications service to which an interception warrant relates; or
(ii) a person specified in an interception warrant as a person using or likely to use the telecommunications service to which the warrant relates.
6EAA Preservation notice information
A reference in this Act to preservation notice information is a reference to:
(a) information about any of the following:
(i) the giving of a preservation notice;
(ii) for a foreign preservation notice—the making of a request under section 107P to preserve stored communications covered by the notice;
(iii) the existence or non‑existence of a preservation notice;
(iv) the expiry of a preservation notice; or
(b) any other information that is likely to enable the identification of:
(i) the person or telecommunications service specified in a preservation notice; or
(ii) the person or telecommunications service to which a preservation notice relates.
6EB Stored communications warrant information
A reference in this Act to stored communications warrant information is a reference to:
(a) information about any of the following:
(i) an application for a stored communications warrant;
(ii) the issue of a stored communications warrant;
(iii) the existence or non‑existence of a stored communications warrant;
(iv) the expiry of a stored communications warrant; or
(b) any other information that is likely to enable the identification of:
(i) the telecommunications service to which a stored communications warrant relates; or
(ii) a person specified in a stored communications warrant as a person using or likely to use the telecommunications service to which the warrant relates.
6F Offences
Except so far as the contrary intention appears, a reference in this Act to an offence, or to an offence of a particular kind, is a reference to an offence, or to an offence of that kind, as the case may be, that:
(a) has been committed or is being committed; or
(b) is suspected on reasonable grounds of having been committed, of being committed or of being likely to be committed.
6G Officer of the Commonwealth, of a State or of a Territory
(1) A reference in this Act to an officer of the Commonwealth includes a reference to:
(a) a person holding, or acting in, an office (including a judicial office) or appointment, or employed, under a law of the Commonwealth;
(b) a person who is, or is a member of, an authority or body established for a public purpose by or under a law of the Commonwealth, or is an officer or employee of such an authority or body; and
(c) an officer of the Australian Capital Territory;
but does not include a reference to an officer of the Northern Territory or of an external Territory.
(2) A reference in this Act to an officer of a State includes a reference to:
(a) a person holding, or acting in, an office (including a judicial office) or appointment, or employed, under a law of the State; and
(b) a person who is, or is a member of, an authority or body established for a public purpose by or under a law of the State, or is an officer or employee of such an authority or body.
(3) A reference in this Act to an officer of a Territory includes a reference to:
(a) a person holding, or acting in, an office (including a judicial office) or appointment, or employed, under a law of the Territory; and
(b) a person who is, or is a member of, an authority or body established for a public purpose by or under a law of the Territory, or is an officer or employee of such an authority or body.
6H Person to whom application relates
For the purposes of this Act, an application by an agency to a Judge or nominated ART member for a warrant relates to a particular person if, and only if, information has been, or is proposed to be, given to the Judge or nominated ART member under Part 2‑5, in connection with the application, in order to satisfy the Judge or nominated ART member, in relation to the person, of the matters referred to in:
(a) in the case of a warrant under section 48—paragraphs 46(1)(c) and (d), 46(4)(c), (d) and (e), 46(7)(c) to (h), 46(9)(c), (d) and (e), or 46(12)(c) to (g), as the case requires; or
(b) in the case of any other Part 2‑5 warrant—paragraphs 46(1)(c) and (d), 46(4)(c), (d) and (e), 46(7)(c) to (h), 46A(1)(c) and (d), 46A(2A)(c), (d) and (e), 46A(2C)(c) to (h), 46A(2E)(c), (d) and (e), or 46A(2G)(a) to (g), as the case requires; or
(c) in the case of a stored communications warrant—subparagraph 116(1)(d)(i) or (ii), as the case requires.
6J Proceeding by way of a prosecution for an offence
A reference in this Act to a proceeding by way of a prosecution for an offence includes a reference to a proceeding with a view to the committal of a person for trial for the offence.
6K Proceeding for confiscation or forfeiture or for pecuniary penalty
A reference in this Act to a proceeding, or to a proceeding under a law of the Commonwealth, for the confiscation or forfeiture of property, or for the imposition of a pecuniary penalty, in connection with the commission of a prescribed offence includes a reference to:
(a) a proceeding for the condemnation or recovery of a ship or aircraft, or of goods, seized under section 203 of the Customs Act 1901 in connection with the commission of an offence against:
(i) subsection 50(7) or subsection 112(2BC) of the Customs Act 1901; or
(ii) Division 307 of the Criminal Code; and
(b) a proceeding by way of an application for an order under subsection 243B(1) of the Customs Act 1901; and
(c) a proceeding by way of an application for a restraining order, or an order that is ancillary to a restraining order, under a prescribed Act of the Commonwealth, a State or the Australian Capital Territory.
6L Relevant proceeding
(1) A reference in this Act, in relation to an agency, or an eligible authority of a State, to a relevant proceeding is, in the case of the Australian Federal Police or a Police Force of a State, a reference to:
(a) a proceeding by way of a prosecution for a prescribed offence that is an offence against a law of the Commonwealth, or of that State, as the case may be; or
(b) a proceeding under a law of the Commonwealth, or of that State, as the case may be, for the confiscation or forfeiture of property, or for the imposition of a pecuniary penalty, in connection with the commission of a prescribed offence; or
(ba) in the case of the Australian Federal Police—a proceeding under, or a proceeding relating to a matter arising under:
(i) the main unexplained wealth provisions; or
(ii) the unexplained wealth legislation of a participating State, the Australian Capital Territory or the Northern Territory; or
(bb) in the case of the Police Force of a participating State, the Australian Capital Territory or the Northern Territory—a proceeding under, or a proceeding relating to a matter arising under, the unexplained wealth legislation of that State or Territory; or
(c) a proceeding for the taking of evidence as mentioned in paragraph 5B(1)(c), in so far as the proceeding relates to:
(i) a prescribed offence; or
(ii) a prescribed offence that is an offence against a law of that State;
as the case may be; or
(ca) a proceeding under, or in relation to a matter arising under, an organised crime control law of that State; or
(d) a proceeding for the extradition of a person as mentioned in paragraph 5B(1)(d), in so far as the proceeding relates to a prescribed offence that is an offence against a law of the Commonwealth, or of that State, as the case may be; or
(e) a police disciplinary proceeding that is a proceeding against a member of the Australian Federal Police, or of that Police Force, as the case may be; or
(ea) in the case of the Australian Federal Police:
(i) a proceeding against an AFP employee in so far as the proceeding relates to a decision by the Commissioner of Police to terminate the employment of the employee; or
(ii) a proceeding against a special member of the Australian Federal Police in so far as the proceeding relates to a decision by the Commissioner of Police to terminate the appointment of the member; or
(eb) in the case of a Police Force of a State—a proceeding against an officer or member of staff of that Police Force in so far as the proceeding relates to a decision by the Commissioner of that Police Force to terminate the appointment of the officer or member of staff; or
(f) any other proceeding (not being a proceeding by way of a prosecution for an offence) in so far as it relates to alleged misbehaviour, or alleged improper conduct, of an officer of the Commonwealth, or of that State, as the case may be.
(2) A reference in this Act, in relation to an agency, or an eligible authority of a State, to a relevant proceeding is:
(a) in the case of the National Anti‑Corruption Commission or the ACC—a reference to:
(i) a proceeding by way of a prosecution for a prescribed offence to which a prescribed investigation relates or related; or
(ii) a proceeding under a law of the Commonwealth or a State for the confiscation or forfeiture of property, or for the imposition of a pecuniary penalty, in connection with the commission of a prescribed offence to which a prescribed investigation relates or related; or
(aa) in the case of the Crime Commission (NSW)—a reference to:
(i) a proceeding by way of a prosecution for a prescribed offence that is an offence against the law of New South Wales and to which a prescribed investigation relates or related; or
(ii) a proceeding under a law of New South Wales for the confiscation or forfeiture of property, or for the imposition of a pecuniary penalty, in connection with the commission of a prescribed offence; or
(b) in the case of the Independent Commission Against Corruption (NSW), the Inspector of the Independent Commission Against Corruption (NSW), the Law Enforcement Conduct Commission (NSW) or the Inspector of the Law Enforcement Conduct Commission (NSW)—a reference to a proceeding by way of a prosecution for a prescribed offence:
(i) that is an offence against the law of New South Wales; and
(ii) to which a prescribed investigation relates or related; or
(ba) in the case of the IBAC (Vic.) or the Victorian Inspectorate—a reference to a proceeding by way of a prosecution for a prescribed offence:
(i) that is an offence against the law of Victoria; and
(ii) to which a prescribed investigation relates or related; or
(c) in the case of the Crime and Corruption Commission (Qld)—a reference to:
(i) a proceeding by way of a prosecution for a prescribed offence that is an offence against the law of Queensland and to which a prescribed investigation relates or related; or
(ii) a proceeding under a law of Queensland for the confiscation or forfeiture of property, or for the imposition of a pecuniary penalty, in connection with the commission of a prescribed offence; or
(d) in the case of the Corruption and Crime Commission (WA) or the Parliamentary Inspector of the Corruption and Crime Commission (WA)—a reference to a proceeding by way of a prosecution for a prescribed offence:
(i) that is an offence against the law of Western Australia; and
(ii) to which a prescribed investigation relates or related; or
(e) in the case of the Independent Commission Against Corruption (SA) or the Inspector of the Independent Commission Against Corruption (SA)—a reference to a proceeding by way of prosecution for a prescribed offence:
(i) that is an offence against the law of South Australia; and
(ii) to which a prescribed investigation relates or related.
(3) A reference in this Act, in relation to an agency that is an interception agency, to a relevant proceeding is a reference to a proceeding under, or a proceeding relating to a matter arising under:
(a) the main unexplained wealth provisions; or
(b) the unexplained wealth legislation of a participating State, the Australian Capital Territory or the Northern Territory.
6M Terminating the appointment of an officer
A reference in this Act to terminating, because of misbehaviour or improper conduct, the appointment of an officer of the Commonwealth or a State includes a reference to removing the officer from office on the ground of misbehaviour or improper conduct.
6N Declaration of staff members of State Police Forces
(1) This section applies to an agency that is the Police Force of a State.
(2) The Minister may make a written declaration that members of an agency included in a specified class of members of the agency occupy positions corresponding to those of AFP employees who are not members of the Australian Federal Police.
(3) Members included in the class of members of an agency specified in a declaration are referred to in this Act, in relation to the agency concerned, as staff members.
6P Identification of service
For the purposes of this Act (other than Schedule 1), a service may be identified by:
(a) a number assigned to it from time to time; or
(b) by any other unique identifying factor.
6Q Identification of telecommunications device
For the purposes of this Act, a telecommunications device may be identified by:
(a) a unique telecommunications number assigned to it from time to time; or
(b) any other unique identifying factor.
6R Communications Access Coordinator
(1) In this Act:
Communications Access Coordinator means:
(a) the Secretary of the Department; or
(b) if a person or body is covered by an instrument made under subsection (2)—that person or body.
(2) The Minister may, by legislative instrument, specify one or more persons or bodies, or one or more classes of persons or bodies, for the purposes of paragraph (b) of the definition of Communications Access Coordinator in subsection (1).
(2A) The Minister must only specify a person or class of persons in an instrument made under subsection (2) if the person is an APS employee, or the class of persons consists wholly of APS employees, in the Department.
Instrument must specify certain functions or powers
(2B) An instrument made under subsection (2) must specify the functions or powers of a Communications Access Coordinator under this Act or any other Act that a person or body, or a class of persons or bodies, specified in the instrument may perform or exercise.
(2C) A person or body, or a class of persons or bodies, specified in an instrument made under subsection (2) may only perform the functions or exercise the powers specified in that instrument in relation to that person or body, or class of persons or bodies.
(3) Unless the context otherwise requires, an act done by or in relation to a Communications Access Coordinator is taken to be an act done by or in relation to the Coordinator on behalf of all the interception agencies and all the enforcement agencies.
6S Permitted purposes—integrity purposes
(1) For the purposes of paragraph (aaa) of the definition of permitted purpose in subsection 5(1), a purpose mentioned in column 2 of an item in the following table is a permitted purpose in relation to a Commonwealth agency, or the Immigration and Border Protection Department, as mentioned in column 1 of that item.
Permitted purposes—integrity purposes |
Item | Column 1—Commonwealth agency or Immigration and Border Protection Department | Column 2—Permitted purpose |
1 | (a) Australian Federal Police; or (b) ACC; or (c) National Anti‑Corruption Commission; or (d) Immigration and Border Protection Department. | A purpose connected with: (a) a decision about whether to apply for an integrity authority; or (b) designing, but not conducting, an integrity operation; or (c) an application for an integrity authority; or (d) granting an integrity authority. |
2 | (a) Australian Federal Police; or (b) ACC; or (c) National Anti‑Corruption Commission. | A purpose connected with an application for any warrant, authorisation or order, under a law of the Commonwealth, that is made for the purposes of an integrity operation. |
3 | (a) Australian Federal Police; or (b) ACC. | A purpose connected with disciplinary or legal action in relation to an eligible staff member of that agency, if arising out of, or otherwise related to, an integrity operation. |
Note: The Commonwealth agencies are the ACC, the Australian Federal Police and the National Anti‑Corruption Commission (see subsection 5(1)).
(2) In this section:
disciplinary or legal action, in relation to an eligible staff member of the Australian Federal Police or the ACC, means any of the following:
(a) action in respect of alleged misconduct of the staff member;
(b) termination of the employment or appointment of the staff member;
(c) a disciplinary proceeding in relation to the staff member, or a report of such a proceeding;
(d) the investigation of an offence suspected to have been committed by the staff member;
(e) a legal proceeding in relation to the staff member, or a report of such a proceeding.
Disciplinary or legal action also includes the consideration of whether an action or proceeding covered by this definition should be taken or brought.
disciplinary proceeding:
(a) means a proceeding of a disciplinary nature under a law of the Commonwealth or of a State or Territory; and
(b) includes action taken under Subdivision D of Division 3 of Part V of the Australian Federal Police Act 1979.
eligible staff member, of the Australian Federal Police or the ACC, means a staff member of that agency within the meaning of the National Anti‑Corruption Commission Act 2022 (see section 12 of that Act).
6T When a Part 5.3 supervisory order is taken to be in force
For the purposes of this Act, a Part 5.3 supervisory order is taken to be in force in relation to a person if:
(a) the order is a control order that has been made but has not yet come into force because:
(i) it has not been served on the person; or
(ii) the person is detained in custody in a prison (within the meaning of Part 5.3 of the Criminal Code); or
(b) the order is an extended supervision order or an interim supervision order that has been made but the period specified in the order under paragraph 105A.7A(4)(d) or 105A.9A(7)(c) of the Criminal Code has not yet begun.
6U Succeeding Part 5.3 supervisory orders
(1) If 2 or more successive control orders are made in relation to the same person, each later control order is a succeeding Part 5.3 supervisory order in relation to each earlier control order.
Note: If an interim control order is confirmed, the confirmed control order is a succeeding Part 5.3 supervisory order in relation to the interim control order (see the definition of control order in section 5).
(2) If an interim supervision order is made in relation to a person, any later extended supervision order in relation to the person is a succeeding Part 5.3 supervisory order in relation to an earlier interim supervision order.
(3) If 2 or more successive extended supervision orders or interim supervision orders are made in relation to the same person, each later extended supervision order or interim supervision order is a succeeding Part 5.3 supervisory order in relation to each earlier extended supervision order or interim supervision order.
6UA When a community safety supervision order is taken to be in force
For the purposes of this Act, a community safety supervision order is taken to be in force in relation to a person if the order has been made but the period specified in the order under paragraph 395.13(5)(d) of the Criminal Code has not yet begun.
6UB Succeeding community safety supervision orders
(1) If a community safety supervision order is made in relation to a person, any later community safety supervision order in relation to the person is a succeeding community safety supervision order in relation to an earlier community safety supervision order.
(2) If 2 or more successive community safety supervision orders are made in relation to the same person, each later community safety supervision order is a succeeding community safety supervision order in relation to each earlier community safety supervision order.
6V Substitution of references to the Attorney‑General
Unless the Prime Minister is satisfied that exceptional circumstances exist, the Governor‑General must not make a substituted reference order under subsection 19B(2) of the Acts Interpretation Act 1901 that relates to a provision of this Act that refers to the Attorney‑General.
Chapter 2—Interception of telecommunications
Part 2‑1—Prohibition on interception of telecommunications
7 Telecommunications not to be intercepted
(1) A person shall not:
(a) intercept;
(b) authorize, suffer or permit another person to intercept; or
(c) do any act or thing that will enable him or her or another person to intercept;
a communication passing over a telecommunications system.
(2) Subsection (1) does not apply to or in relation to:
(a) an act or thing done by an employee of a carrier in the course of his or her duties for or in connection with:
(i) the installation of any line, or the installation of any equipment, used or intended for use in connection with a telecommunications service; or
(ii) the operation or maintenance of a telecommunications system; or
(iii) the identifying or tracing of any person who has contravened, or is suspected of having contravened or being likely to contravene, a provision of Part 10.6 of the Criminal Code;
where it is reasonably necessary for the employee to do that act or thing in order to perform those duties effectively; or
(aa) the interception of a communication by another person lawfully engaged in duties relating to the installation, connection or maintenance of equipment or a line, where it is reasonably necessary for the person to intercept the communication in order to perform those duties effectively; or
(aaa) the interception of a communication by a person if:
(i) the person is authorised, in writing, by a responsible person for a computer network to engage in network protection duties in relation to the network; and
(ii) it is reasonably necessary for the person to intercept the communication in order to perform those duties effectively; or
(ab) the interception of a communication by a person lawfully engaged in duties relating to the installation, connection or maintenance of equipment used, or to be used, for the interception of communications under warrants; or
(ac) the interception of a communication where the interception results from, or is incidental to, action taken by an ASIO employee, in the lawful performance of his or her duties, for the purpose of:
(i) discovering whether a listening device is being used at, or in relation to, a particular place; or
(ii) determining the location of a listening device; or
(ad) the interception of a communication where the interception results from, or is incidental to, action taken by an ASIO affiliate, in accordance with the contract, agreement or other arrangement under which the ASIO affiliate is performing functions or services for the Organisation, for the purpose of:
(i) discovering whether a listening device is being used at, or in relation to, a particular place; or
(ii) determining the location of a listening device; or
(b) the interception of a communication under a warrant; or
(ba) the interception of a communication under subsection 25A(4) or (8), 27A(1) or (3C), 27E(2) or 27E(6) of the Australian Security Intelligence Organisation Act 1979; or
(bb) the interception of a communication under subsection 27E(7), 27KE(9) or 27KP(8) of the Surveillance Devices Act 2004; or
(bc) an act or thing done in compliance with an international production order (within the meaning of Schedule 1); or
(c) the interception of a communication pursuant to a request made, or purporting to be made, under subsection 30(1) or (2); or
(d) the interception of a communication under an authorisation under section 31A.
(2A) For the purposes of paragraphs (2)(a), (aa) and (aaa), in determining whether an act or thing done by a person was reasonably necessary in order for the person to perform his or her duties effectively, a court is to have regard to such matters (if any) as are specified in, or ascertained in accordance with, the regulations.
(3) Paragraph (2)(aaa) does not apply to a voice communication in the form of speech (including a communication that involves a recorded or synthetic voice).
(4) Subsection (1) does not apply to, or in relation to, an act done by an officer of an agency in relation to a communication if the following conditions are satisfied:
(a) the officer or another officer of the agency is a party to the communication; and
(b) there are reasonable grounds for suspecting that another party to the communication has:
(i) done an act that has resulted, or may result, in loss of life or the infliction of serious personal injury; or
(ii) threatened to kill or seriously injure another person or to cause serious damage to property; or
(iii) threatened to take his or her own life or to do an act that would or may endanger his or her own life or create a serious threat to his or her health or safety; and
(c) because of the urgency of the need for the act to be done, it is not reasonably practicable for an application for a Part 2‑5 warrant to be made.
(5) Subsection (1) does not apply to, or in relation to, an act done by an officer of an agency in relation to a communication if the following conditions are satisfied:
(a) the person to whom the communication is directed has consented to the doing of the act; and
(b) there are reasonable grounds for believing that that person is likely to receive a communication from a person who has:
(i) done an act that has resulted, or may result, in loss of life or the infliction of serious personal injury; or
(ii) threatened to kill or seriously injure another person or to cause serious damage to property; or
(iii) threatened to take his or her own life or to do an act that would or may endanger his or her own life or create a serious threat to his or her health or safety; and
(c) because of the urgency of the need for the act to be done, it is not reasonably practicable for an application for a Part 2‑5 warrant to be made.
(6) As soon as practicable after the doing of an act in relation to a communication under the provisions of subsection (4) or (5), an officer of the agency which is concerned with the communication shall cause an application for a Part 2‑5 warrant to be made in relation to the matter.
(6A) Subsection (6) does not apply if action has been taken under subsection (4) or (5) to intercept a communication, or cause it to be intercepted, and the action has ceased before it is practicable for an application for a Part 2‑5 warrant to be made.
(7) Where after considering an application made in relation to a matter arising under subsections (4) or (5) and (6) a Judge or nominated ART member does not issue a warrant in relation to the application, the chief officer of the agency concerned shall ensure that no further action is taken by the agency to intercept the communication or to cause it to be intercepted.
(8) Subsections (4), (5), (6) and (7) only apply where the agency concerned is:
(a) the Australian Federal Police; or
(b) the Police Force of a State.
(9) The doing of an act mentioned in subparagraph (4)(b)(ii) or (iii) or (5)(b)(ii) or (iii) in a particular case is taken to constitute a serious offence, even if it would not constitute a serious offence apart from this subsection.
Note: See subsection (6). A Part 2‑5 warrant can only be issued for:
(a) the purposes of an investigation relating to the commission of one or more serious offences; or
(b) purposes relating to a Part 5.3 supervisory order or an application for a post‑sentence order; or
(c) purposes relating to a community safety supervision order or an application for a Part 9.10 order.
(10) Subsection (9) has effect only to the extent necessary:
(a) to enable an application to be made for the purposes of subsection (6); and
(b) to enable a decision to be made on such an application and, if a Judge so decides, a Part 2‑5 warrant to be issued; and
(c) to enable this Act to operate in relation to a Part 2‑5 warrant issued on such an application.
Part 2‑2—Warrants authorising the Organisation to intercept telecommunications
9 Issue of telecommunications service warrants by Attorney‑General
(1) Where, upon receipt by the Attorney‑General of a request by the Director‑General of Security for the issue of a warrant under this section in respect of a telecommunications service, the Attorney‑General is satisfied that:
(a) the telecommunications service is being or is likely to be:
(i) used by a person engaged in, or reasonably suspected by the Director‑General of Security of being engaged in, or of being likely to engage in, activities prejudicial to security; or
(ia) the means by which a person receives or sends a communication from or to another person who is engaged in, or reasonably suspected by the Director‑General of Security of being engaged in, or of being likely to engage in, such activities; or
(ii) used for purposes prejudicial to security; and
(b) the interception by the Organisation of communications made to or from the telecommunications service will, or is likely to, assist the Organisation in carrying out its function of obtaining intelligence relating to security;
the Attorney‑General may, by warrant under his or her hand, authorize persons approved under section 12 in respect of the warrant to intercept, subject to any conditions or restrictions that are specified in the warrant, communications that are being made to or from that service and such a warrant may authorize entry on any premises specified in the warrant for the purpose of installing, maintaining, using or recovering any equipment used to intercept such communications.
Note: Subparagraph (a)(ia)—subsection (3) restricts the issuing of warrants if subparagraph (a)(ia) applies.
(1A) The reference in paragraph (1)(b) to the interception of communications made to or from a telecommunications service includes a reference to the accessing of the communications as stored communications after they have ceased to pass over a telecommunications system.
(2) A request by the Director‑General of Security for the issue of a warrant in respect of a telecommunications service:
(a) shall include a description of the service sufficient to identify it, including:
(i) the name, address and occupation of the subscriber (if any) to the service; and
(ii) the number (if any) allotted to the service by a carrier; and
(b) shall specify the facts and other grounds on which the Director‑General of Security considers it necessary that the warrant should be issued and, where relevant, the grounds on which the Director‑General of Security suspects a person of being engaged in, or of being likely to engage in, activities prejudicial to security.
(3) The Attorney‑General must not issue a warrant in a case in which subparagraph (1)(a)(ia) applies unless he or she is satisfied that:
(a) the Organisation has exhausted all other practicable methods of identifying the telecommunications services used, or likely to be used, by the other person referred to in subparagraph (1)(a)(ia); or
(b) interception of communications made to or from a telecommunications service used or likely to be used by that person would not otherwise be possible.
9A Issue of named person warrants by Attorney‑General
(1) Upon receiving a request by the Director‑General of Security for the issue of a warrant under this section in respect of a person, the Attorney‑General may, under his or her hand, issue a warrant in respect of the person if the Attorney‑General is satisfied that:
(a) the person is engaged in, or reasonably suspected by the Director‑General of Security of being engaged in, or of being likely to engage in, activities prejudicial to security; and
(b) the interception by the Organisation of:
(i) communications made to or from telecommunications services used by the person; or
(ii) communications made by means of a particular telecommunications device or particular telecommunications devices used by the person;
will, or is likely to, assist the Organisation in carrying out its function of obtaining intelligence relating to security; and
(c) relying on a telecommunications service warrant to obtain the intelligence would be ineffective.
(1A) The warrant authorises persons approved under section 12 in respect of the warrant to intercept, subject to any conditions or restrictions that are specified in the warrant:
(a) communications that are being made to or from any telecommunications service that the person is using, or is likely to use; or
(b) communications that are being made by means of a telecommunications device or telecommunications devices, identified in the warrant, that the person is using, or is likely to use.
Note: Subsection (3) restricts the issuing of a warrant authorising interception of communications made by means of a telecommunications device or telecommunications devices identified in the warrant.
(1B) The warrant may authorise entry on any premises specified in the warrant for the purpose of installing, maintaining, using or recovering any equipment used to intercept such communications.
(1C) The reference in paragraph (1)(b) to the interception of communications made to or from a telecommunications service includes a reference to the accessing of the communications as stored communications after they have ceased to pass over a telecommunications system.
(2) A request by the Director‑General of Security for the issue of a warrant in respect of a person:
(a) must include the name or names by which the person is known; and
(b) must include details (to the extent these are known to the Director‑General of Security) sufficient to identify the telecommunications services the person is using, or is likely to use; and
(ba) if the warrant would authorise interception of communications made by means of a telecommunications device or telecommunications devices identified in the warrant—must include details (to the extent these are known to the Director‑General of Security) sufficient to identify the telecommunications device or telecommunications devices that the person is using, or is likely to use; and
(c) must specify the facts and other grounds on which the Director‑General of Security considers it necessary that the warrant should be issued, including the grounds on which the Director‑General of Security suspects the person of being engaged in, or of being likely to engage in, activities prejudicial to security.
(3) The Attorney‑General must not issue a warrant that authorises interception of communications made by means of a telecommunications device or telecommunications devices identified in the warrant unless he or she is satisfied that:
(a) there are no other practicable methods available to the Organisation at the time of making the application to identify the telecommunications services used, or likely to be used, by the person in respect of whom the warrant would be issued; or
(b) interception of communications made to or from a telecommunications service used, or likely to be used, by that person would not otherwise be practicable.
9B Provisions applying to warrants issued under section 9 or 9A
Request must be forwarded in writing
(1) Where the Director‑General of Security makes a request, otherwise than in writing, for the issue of a warrant under section 9 or 9A, he or she must forthwith forward to the Attorney‑General a request in writing for the warrant.
Warrants authorising entry
(2) Where a warrant under section 9 or 9A authorises entry on premises, the warrant:
(a) must state whether entry is authorised to be made at any time of the day or night or only during specified hours; and
(b) may, if the Attorney‑General thinks fit—provide that entry may be made without permission first being sought or demand first being made, and may authorise measures that he or she is satisfied are necessary for that purpose.
Length of time warrant remains in force
(3) A warrant under section 9 or 9A must specify the period for which it is to remain in force. The warrant may be revoked by the Attorney‑General at any time before the end of the specified period.
(3A) The specified period must not exceed:
(a) if subparagraph 9(1)(a)(ia) applies—3 months; or
(b) otherwise—6 months.
Issue of further warrant
(4) Subsection (3) does not prevent the issue of a further warrant in respect of a telecommunications service or a person (as the case may be) in relation to which or whom a warrant has, or warrants have, previously been issued.
10 Issue of warrant by Director‑General of Security in emergency for Organisation to intercept telecommunications
(1) Where:
(a) the Director‑General of Security has forwarded or made a request to the Attorney‑General for the issue of a warrant under section 9 in respect of a telecommunications service or under section 9A in respect of a person;
(b) the Attorney‑General has not, to the knowledge of the Director‑General of Security, made a decision with respect to the request and has not, within the preceding period of 3 months, refused to issue a warrant under section 9 in respect of the telecommunications service or under section 9A in respect of a person (as the case requires);
(c) the Director‑General of Security has not, within the preceding period of 3 months, issued a warrant under this section in respect of the telecommunications service or person (as the case requires); and
(d) the Director‑General of Security is satisfied:
(i) that the facts of the case would justify the issue of a warrant by the Attorney‑General; and
(ii) that, if the interception to which the request relates does not commence before a warrant can be issued and made available by the Attorney‑General, security will be, or is likely to be, seriously prejudiced;
the Director‑General of Security may, by warrant under his or her hand, authorize persons approved under section 12 in respect of the warrant to intercept, subject to any conditions or restrictions that are specified in the warrant, communications that are being made to or from that service, or communications of that person (as the case requires), and such a warrant may authorize entry on any premises specified in the warrant for the purpose of installing, maintaining, using or recovering any equipment used to intercept such communications.
(1A) The reference in subparagraph (1)(d)(ii) to the interception not commencing includes a reference to the communications, that were to be intercepted, not being accessed as stored communications after they have ceased to pass over a telecommunications system.
(2) Where a warrant under this section authorizes entry on premises, the warrant shall state whether entry is authorized to be made at any time of the day or night or only during specified hours and may, if the Director‑General of Security thinks fit, provide that entry may be made without permission first being sought or demand first being made, and authorize measures that he or she is satisfied are necessary for that purpose.
(3) A warrant under this section shall specify the period for which it is to remain in force, being a period that does not exceed 48 hours, but may be revoked by the Attorney‑General at any time before the expiration of the period so specified.
(4) Where the Director‑General of Security issues a warrant under this section, he or she shall forthwith furnish to the Attorney‑General:
(a) a copy of the warrant; and
(b) a statement of the grounds on which he or she is satisfied as to the matters referred to in subparagraph (1)(d)(ii).
(5) The Director‑General must, within 3 working days after issuing a warrant under this section, give a copy of the warrant to the Inspector‑General of Intelligence and Security.
11A Telecommunications service warrant for collection of foreign intelligence
(1) Where:
(a) the Director‑General of Security gives a notice in writing to the Attorney‑General requesting the Attorney‑General to issue a warrant under this section authorising persons approved under section 12 in respect of the warrant to do acts or things referred to in subsection 9(1) in relation to a particular telecommunications service for the purpose of obtaining foreign intelligence relating to a matter specified in the notice; and
(b) the Attorney‑General is satisfied, on the basis of advice received from the Minister for Defence or the Minister for Foreign Affairs, that the collection of foreign intelligence relating to that matter is in the interests of Australia’s national security, Australia’s foreign relations or Australia’s national economic well‑being;
the Attorney‑General may, by warrant under his or her hand, authorise persons approved under section 12 in respect of the warrant, subject to any conditions or restrictions that are specified in the warrant, to do such of those acts or things in relation to that telecommunications service as the Attorney‑General considers appropriate in the circumstances and are specified in the warrant, for the purpose of obtaining that intelligence.
(2) A request by the Director‑General of Security for the issue of a warrant under this section:
(a) shall include a description of the service sufficient to identify it, including:
(i) the name, address and occupation of the subscriber (if any) to the service; and
(ii) the number (if any) allotted to the service by a carrier; and
(b) shall specify the facts and other grounds on which the Director‑General of Security considers it necessary that the warrant should be issued.
(3) If the Director‑General of Security requests the issue of a warrant under this section for the purpose of collecting information concerning a person who is an Australian citizen or permanent resident (see subsection 11D(5)), then:
(a) the Director‑General must include details in the request about the grounds on which the Director‑General suspects that the person is acting for, or on behalf of, a foreign power; and
(b) the Attorney‑General must not issue the warrant unless the Attorney‑General is satisfied that the person is, or is reasonably suspected by the Director‑General of, acting for, or on behalf of, a foreign power.
Note: Warrants are obtained under this section for the purpose of performing the function set out in paragraph 17(1)(e) of the Australian Security Intelligence Organisation Act 1979.
11B Named person warrant for collection of foreign intelligence
(1) The Attorney‑General may, under his or her hand, issue a warrant in respect of a person if:
(a) the Director‑General of Security gives a notice in writing to the Attorney‑General requesting the Attorney‑General to issue a warrant under this section authorising persons approved under section 12 in respect of the warrant to do acts or things referred to in subsection 9A(1A) in relation to:
(i) communications that are being made to or from any telecommunications service that a person or foreign organisation is using, or is likely to use; or
(ii) communications that are being made by means of a particular telecommunications device or particular telecommunications devices that a person or foreign organisation is using, or is likely to use;
for the purpose of obtaining foreign intelligence relating to a matter specified in the notice; and
(b) the Attorney‑General is satisfied, on the basis of advice received from the Minister for Defence or the Minister for Foreign Affairs, that:
(i) the obtaining of foreign intelligence relating to that matter is in the interests of Australia’s national security, Australia’s foreign relations or Australia’s national economic well‑being; and
(ii) it is necessary to intercept the communications of the person or foreign organisation in order to obtain the intelligence referred to in paragraph (a); and
(iii) relying on a telecommunications service warrant to obtain the intelligence would be ineffective.
(1A) The warrant authorises persons approved under section 12 in respect of the warrant to intercept, subject to any conditions or restrictions that are specified in the warrant:
(a) communications that are being made to or from any telecommunications service that the person or foreign organisation is using, or is likely to use; or
(b) communications that are being made by means of a telecommunications device or telecommunications devices, identified in the warrant, that the person or foreign organisation is using, or is likely to use.
Note: Subsection (3) restricts the issuing of a warrant authorising interception of communications made by means of a telecommunications device or telecommunications devices identified in the warrant.
(1B) The warrant may authorise entry on any premises specified in the warrant for the purpose of installing, maintaining, using or recovering any equipment used to intercept such communications.
(2) A request by the Director‑General of Security for the issue of a warrant in respect of a person or foreign organisation:
(a) must include the name or names by which the person or organisation is known; and
(b) must include details (to the extent these are known to the Director‑General of Security) sufficient to identify the telecommunications services the person or foreign organisation is using, or is likely to use; and
(ba) if the warrant would authorise interception of communications made by means of a telecommunications device or telecommunications devices identified in the warrant—must include details (to the extent these are known to the Director‑General of Security) sufficient to identify the telecommunications device or telecommunications devices that the person is using, or is likely to use; and
(c) must specify the facts and other grounds on which the Director‑General of Security considers it necessary that the warrant should be issued.
(3) The Attorney‑General must not issue a warrant that authorises interception of communications made by means of a telecommunications device or telecommunications devices identified in the warrant unless he or she is satisfied that:
(a) there are no other practicable methods available to the Organisation at the time of making the application to identify the telecommunications services used, or likely to be used, by the person or foreign organisation in respect of whom or which the warrant would be issued; or
(b) interception of communications made to or from a telecommunications service used, or likely to be used, by that person or foreign organisation would not otherwise be practicable.
(4) If the Director‑General of Security requests the issue of a warrant under this section for the purpose of collecting information concerning a person who is an Australian citizen or permanent resident (see subsection 11D(5)), then:
(a) the Director‑General must include details in the request about the grounds on which the Director‑General suspects that the person is acting for, or on behalf of, a foreign power; and
(b) the Attorney‑General must not issue the warrant unless the Attorney‑General is satisfied that the person is, or is reasonably suspected by the Director‑General of, acting for, or on behalf of, a foreign power.
Note: Warrants are obtained under this section for the purpose of performing the function set out in paragraph 17(1)(e) of the Australian Security Intelligence Organisation Act 1979.
11C Foreign communications warrant for collection of foreign intelligence
Issue of warrant
(1) Where:
(a) the Director‑General of Security gives a notice in writing to the Attorney‑General requesting the Attorney‑General to issue a warrant under this section authorising persons approved under section 12 in respect of the warrant to intercept communications for the purpose of obtaining foreign intelligence relating to a matter specified in the notice from foreign communications intercepted under the warrant; and
(b) the Attorney‑General is satisfied, on the basis of advice received from the Minister for Defence or the Minister for Foreign Affairs, that:
(i) the collection of foreign intelligence relating to that matter is in the interests of Australia’s national security, Australia’s foreign relations or Australia’s national economic well‑being; and
(ii) it is necessary to intercept communications in order to obtain that foreign intelligence from foreign communications intercepted under the warrant; and
(iii) relying on a telecommunications service warrant or a named person warrant to obtain the intelligence would be ineffective;
the Attorney‑General may, by warrant under his or her hand, authorise persons approved under section 12 in respect of the warrant, subject to any conditions or restrictions that are specified in the warrant, to intercept communications for the purpose of obtaining that foreign intelligence from foreign communications intercepted under the warrant.
(2) A warrant under subsection (1) must not authorise the interception of any communications except for the purpose of obtaining foreign intelligence relating to a matter specified in the notice referred to in subsection (1) from foreign communications intercepted under the warrant.
(3) A request by the Director‑General of Security for the issue of a warrant under this section must:
(a) specify how the interception of communications is proposed to be conducted under the warrant, including how the risk of intercepting domestic communications will be minimised; and
(b) specify the facts and other grounds on which the Director‑General of Security considers it necessary that the warrant should be issued, including the reasons the information cannot be collected by other means.
(3A) If the Director‑General of Security requests the issue of a warrant under this section for the purpose of collecting information concerning a person who is an Australian citizen or permanent resident (see subsection 11D(5)), then:
(a) the Director‑General must include details in the request about the grounds on which the Director‑General suspects that the person is acting for, or on behalf of, a foreign power; and
(b) the Attorney‑General must not issue the warrant unless the Attorney‑General is satisfied that the person is, or is reasonably suspected by the Director‑General of, acting for, or on behalf of, a foreign power.
(4) The Attorney‑General must not issue a warrant under this section if the mandatory procedure under subsection (6) is not in force.
(4A) If a warrant is issued under this section, then the Director‑General of Security must prepare a notice that:
(a) is addressed to any carrier who operates any part of the telecommunications system that is covered by the warrant; and
(b) gives a description that is sufficient to identify that part of the telecommunications system covered by the warrant;
unless the Attorney‑General is satisfied that the giving of such a notice would not be in the interests of national security or reasonable in the circumstances.
Destruction of irrelevant intercepted communications
(5) Where:
(a) a communication is intercepted under a warrant under this section; and
(b) the Director‑General of Security is satisfied that the communication is not relevant to the purposes specified in the warrant;
the Director‑General of Security must:
(c) cause all records of the communication to be destroyed (unless the communication relates, or appears to relate, to activities that present a significant risk to a person’s life); and
(d) cause the Inspector‑General of Intelligence and Security to be notified of the communication if all records of the communication are not caused to be destroyed because the communication relates, or appears to relate, to activities that present a significant risk to a person’s life.
Mandatory procedure for all intercepted communications
(6) The Attorney‑General must, in writing, issue a mandatory procedure (the mandatory procedure):
(a) for screening communications intercepted under a warrant under this section for the purpose of identifying any domestic communications that may have been intercepted; and
(b) for destroying all records of any domestic communication so identified from that screening (other than a domestic communication that relates, or appears to relate, to activities that present a significant risk to a person’s life); and
(c) for notifying the Inspector‑General of Intelligence and Security of any identified domestic communication if all records of the communication are not destroyed because the communication relates, or appears to relate, to activities that present a significant risk to a person’s life.
(7) The mandatory procedure may also deal with other matters relating to communications intercepted under a warrant under this section.
(8) A person must comply with the mandatory procedure to the extent that it applies to the person.
(9) Before issuing or varying the mandatory procedure, the Attorney‑General must consult:
(a) the Minister for Defence; and
(b) the Minister for Foreign Affairs; and
(c) the Inspector‑General of Intelligence and Security; and
(d) the Director‑General of Security.
(10) The Attorney‑General must review the mandatory procedure as soon as practicable after:
(a) the end of the first anniversary of the mandatory procedure being issued; and
(b) every 3‑year period after that;
but the Attorney‑General may review the mandatory procedure at any other time as well.
(10A) The Attorney‑General must, as soon as practicable, cause the Parliamentary Joint Committee on Intelligence and Security to be notified about the issuing or varying of the mandatory procedure.
(10B) The Parliamentary Joint Committee on Intelligence and Security may request a briefing on the mandatory procedure and on any variations to it.
(11) The mandatory procedure, or any variation of the mandatory procedure, is not a legislative instrument.
(12) For the purposes of this section, a domestic communication is a communication that is not a foreign communication.
Note: Warrants are obtained under this section for the purpose of performing the function set out in paragraph 17(1)(e) of the Australian Security Intelligence Organisation Act 1979.
11D Provisions applying to foreign intelligence warrants
Warrants authorising entry
(1) Where a warrant under section 11A or 11B authorises entry on premises, the warrant:
(a) must state whether entry is authorised to be made at any time of the day or night or only during specified hours; and
(b) may, if the Attorney‑General thinks fit—provide that entry may be made without permission first being sought or demand first being made, and may authorise measures that he or she is satisfied are necessary for that purpose.
Length of time warrant remains in force
(2) A warrant under section 11A, 11B or 11C must specify the period for which it is to remain in force. The period must not exceed 6 months, and the warrant may be revoked by the Attorney‑General at any time before the end of the specified period.
Issue of further warrant
(3) Subsection (2) does not prevent the issue of a further warrant in respect of a telecommunications service, a person or a part of a telecommunications system (as the case may be) in relation to which or whom a warrant has, or warrants have, previously been issued.
Part 10.6 of the Criminal Code
(4) Nothing in Part 10.6 of the Criminal Code is to be taken to prohibit the doing of anything under, or for the purposes of, a warrant under section 11A, 11B or 11C.
Note: Part 10.6 of the Criminal Code deals with offences relating to telecommunications.
Information about Australian citizens or permanent residents
(5) The Director‑General must not request the issue of a warrant under section 11A, 11B or 11C for the purpose of collecting information concerning an Australian citizen or permanent resident, unless the Director‑General reasonably suspects that the person is acting for, or on behalf of, a foreign power.
(6) The reference in subsection 11A(1), 11B(1) and 11C(1) to conditions or restrictions includes a reference to conditions or restrictions designed to minimise:
(a) the obtaining by the Organisation, pursuant to a warrant issued under section 11A, 11B or 11C (as the case may be), of information that is not publicly available concerning Australian citizens or permanent residents; or
(b) the retention of information of that kind.
12 Persons authorised to intercept communications for Organisation
(1) The Director‑General of Security, or an ASIO employee or ASIO affiliate appointed by the Director‑General of Security, in writing, to be an authorizing officer for the purposes of this subsection, may, by writing under his or her hand, approve any persons, or class of persons, as persons authorized to exercise, on behalf of the Organisation, the authority conferred by Part 2‑2 warrants.
(2) To avoid doubt, and without limiting subsection (1), if approval is given to a person or class of persons holding, occupying or performing the duties of an office or position, then the approval extends to such an office or position that comes into existence after the approval is given.
(3) Subsection (2) does not, by implication, affect the interpretation of any other provision of this Act.
(4) The Director‑General of Security must, as soon as practicable after the authority conferred by a Part 2‑2 warrant is exercised on behalf of the Organisation, cause one or more written records to be made that identify each person who exercised that authority.
13 Discontinuance of interception before expiration of warrant
Where, before a Part 2‑2 warrant 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 shall forthwith inform the Attorney‑General accordingly and take such steps that are necessary to ensure that the interception of communications under the warrant is discontinued.
14 Certain records retained by Organisation to be destroyed
Where:
(a) a record or copy has been made of a communication intercepted by virtue of a Part 2‑2 warrant;
(b) the record or copy is in the possession or custody, or under the control, of the Organisation; and
(c) the Director‑General of Security is satisfied that the record or copy is not required, and is not likely to be required, in or in connection with the performance by the Organisation of its functions or the exercise of its powers (including the powers conferred by sections 64 and 65);
the Director‑General of Security shall cause the record or copy to be destroyed.
Note: See subsection 11C(5) and paragraph 11C(6)(b) for additional rules about the destruction of material obtained under a warrant issued under section 11C.
15 How warrants etc. to be dealt with
(1) Where the Attorney‑General issues or revokes a Part 2‑2 warrant, he or she shall cause:
(a) the Director‑General of Security to be informed forthwith of the issue of the warrant or of the revocation, as the case may be; and
(b) the warrant or the instrument of revocation, as the case may be, to be forwarded, as soon as practicable, to the Director General of Security.
(1A) Where:
(a) the Director‑General of Security is informed under paragraph (1)(a) of the issue of a warrant (other than a warrant under section 11C); and
(b) it is proposed, under the warrant, to intercept communications made to or from a telecommunications service while they are passing over a telecommunications system operated by a carrier; and
(ba) the execution of the warrant will involve the taking of action by the carrier or its employees;
the Director‑General of Security shall cause:
(c) an authorised representative of that carrier to be informed forthwith of the issue of the warrant; and
(d) where, under paragraph (1)(b), the Director‑General of Security receives the warrant—a copy of the warrant, certified in writing by a certifying person to be a true copy of the warrant, to be given as soon as practicable to that authorised representative.
Note: Subsection 15(7) deals with cases where the Director‑General of Security is informed of the issue of a warrant under section 11C.
(1B) Where:
(a) an authorised representative of a carrier has been informed, under subsection (1A), of the issue of a warrant; and
(b) the Director‑General of Security is informed under paragraph (1)(a) that the warrant has been revoked;
the Director‑General of Security shall cause:
(c) that authorised representative to be informed forthwith of the revocation; and
(d) where, under paragraph (1)(b), the Director‑General of Security receives the instrument of revocation—a copy of the instrument, certified in writing by a certifying person to be a true copy of the instrument, to be forwarded as soon as practicable to that authorised representative.
(3) The Attorney‑General shall record on each request in writing for the issue of a warrant received by him or her from the Director‑General of Security his or her decision with respect to the request and shall cause the request to be returned to the Director‑General of Security.
(4) Where:
(a) the Director‑General of Security issues a warrant under section 10; and
(b) it is proposed, under the warrant, to intercept communications made to or from a telecommunications service while they are passing over a telecommunications system operated by a carrier; and
(ba) the execution of the warrant will involve the taking of action by the carrier or its employees;
the Director‑General of Security shall cause:
(c) an authorised representative of that carrier to be informed forthwith of the issuing of the warrant; and
(d) a copy of the warrant, certified in writing by the Director‑General, or a Deputy Director‑General of Security, to be a true copy of the warrant, to be given as soon as practicable to that authorised representative.
(6) The Director‑General of Security shall cause to be kept in the Organisation’s records:
(a) each warrant issued under section 10;
(c) each warrant, and each instrument of revocation, received under this section by the Director‑General from the Attorney‑General; and
(e) each request, and each document, returned to the Director‑General by the Attorney‑General.
(7) Where:
(a) the Director‑General of Security is informed under paragraph (1)(a) of the issue of a warrant under section 11C; and
(b) it is proposed, under the warrant, to intercept communications made while they are passing over a telecommunications system operated by a carrier; and
(ba) the carrier is required to be given a notice under subsection 11C(4A) in relation to the warrant;
the Director‑General of Security must cause:
(c) an authorised representative of that carrier to be informed forthwith of the issue of the warrant; and
(d) that authorised representative to be given the notice under subsection 11C(4A) as soon as reasonably practicable.
16 Additional requirements for named person warrants
(1) Where:
(a) an authorised representative of a carrier has been given a copy of a warrant under section 9A or 11B; and
(aa) the warrant is not a warrant that authorises interception of communications made by means of a telecommunications device or telecommunications devices identified in the warrant; and
(b) it is proposed, under the warrant, to intercept communications made to or from a telecommunications service operated by the carrier; and
(c) the service was not identified in the warrant;
a certifying person must cause that authorised representative to be given, as soon as practicable, a description in writing of the service sufficient to identify it.
(1A) Where:
(a) an authorised representative of a carrier has been given a copy of a warrant under section 9A or 11B; and
(b) the warrant is a warrant that authorises interception of communications made by means of a telecommunications device or telecommunications devices identified in the warrant; and
(c) it is proposed, under the warrant, to intercept, by means of a telecommunications device, communications made to or from a telecommunications service operated by the carrier; and
(d) the device was not identified in the warrant;
a certifying person must cause that authorised representative to be given, as soon as practicable, a description in writing of the device sufficient to identify it.
(2) Where:
(a) an authorised representative of a carrier has been given a description of a telecommunications service to or from which, or a telecommunications device or telecommunications devices by means of which, communications are proposed to be intercepted under a warrant under section 9A or 11B; and
(b) the Director‑General of Security is satisfied that the interception of communications to or from that service, or by means of the device or devices, is no longer required;
a certifying person must cause:
(c) that authorised representative to be informed of the fact immediately; and
(d) confirmation in writing of the fact to be given as soon as practicable to that authorised representative.
17 Reports to be made to Attorney‑General on results of interception
(1) The Director‑General of Security shall furnish to the Attorney‑General, in respect of each Part 2‑2 warrant, within 3 months after the expiration or revocation, whichever first occurs, of the warrant, a report in writing on the extent to which the interception of communications under the warrant has assisted the Organisation in carrying out its functions.
(2) A report under subsection (1) in relation to a warrant issued under section 9A or 11B must include details of the telecommunications service to or from which each intercepted communication was made.
18 Evidentiary certificates
(1) The following:
(a) the Managing Director of a carrier;
(b) the secretary of a carrier;
(c) an employee of a carrier authorised in writing for the purposes of this paragraph by the Managing Director or the secretary of the carrier;
may issue a written certificate signed by him or her setting out such facts as he or she considers relevant with respect to acts or things done by, or in relation to, employees of the carrier in order to enable a warrant to be executed.
(2) A document purporting to be a certificate issued under subsection (1) and purporting to be signed by the Managing Director or secretary, or an employee, of a carrier is to be received in evidence in an exempt proceeding without further proof and is, in an exempt proceeding, conclusive evidence of the matters stated in the document.
(3) The Director‑General of Security or the Deputy Director‑General of Security may issue a written certificate signed by him or her setting out such facts as he or she considers relevant with respect to acts or things done:
(a) in order to enable, or in connection with enabling, a warrant issued under this Part to be executed; or
(b) in connection with the execution of a warrant issued under this Part.
(4) The Director‑General of Security or the Deputy Director‑General of Security may issue a written certificate signed by him or her setting out such facts as he or she considers relevant with respect to anything done by an ASIO employee or an ASIO affiliate:
(a) in connection with the execution of a warrant issued under this Part; or
(b) in connection with:
(i) the communication by a person to another person of; or
(ii) the making use of; or
(iii) the making of a record of; or
(iv) the custody of a record of; or
(v) the giving in evidence of;
information obtained by the execution of such a warrant.
(5) A document purporting to be a certificate issued under subsection (3) or (4) by the Director‑General of Security or the Deputy Director‑General of Security and to be signed by him or her is to be received in evidence in an exempt proceeding without further proof and is, in an exempt proceeding, prima facie evidence of the matters stated in the document.
(6) In subsections (1) and (2), a reference to the Managing Director or secretary of a carrier includes a reference to the Managing Director or secretary of a body corporate of which the carrier is a subsidiary.
(7) For the purposes of this section, the question whether a body corporate is a subsidiary of another body corporate is to be determined in the same manner as the question is determined under the Corporations Act 2001.
Part 2‑3—Emergency requests authorising officers of a carrier to intercept telecommunications
30 Emergency requests
(1) Where:
(a) a person is a party to a communication passing over a telecommunications system;
(b) as a result of information conveyed by another party to the communication (in this section referred to as the caller) and of any other matters, the first‑mentioned person forms the honest belief that either of the following emergencies exist:
(i) another person (whether or not the caller) is dying, is being seriously injured or has been seriously injured;
(ii) another person (whether or not the caller) is likely to die or be seriously injured; and
(c) the first‑mentioned person does not know the location of the caller;
the first‑mentioned person may:
(d) in a case where the first‑mentioned person:
(i) is a member of a police force; and
(ii) is of the opinion that tracing the location of the caller is likely to be of assistance in dealing with the emergency;
request, or cause another member of a police force to request, an employee of a carrier to intercept, or to cause other employees of the carrier to intercept, the communication for the purposes of tracing the location of the caller; or
(e) in a case where the first‑mentioned person is not a member of a police force—inform, or cause another person to inform, a member of a police force of the matters referred to in paragraphs (a), (b) and (c).
(2) Where a member of a police force is so informed, the member may, if the member is of the opinion that tracing the location of the caller is likely to be of assistance in dealing with the emergency, request an employee of a carrier to intercept, or to cause other employees of the carrier to intercept, the communication for the purposes of tracing the location of the caller.
(3) Where, pursuant to a request made, or purporting to be made, by a member of a police force under subsection (1) or (2), an employee of a carrier intercepts a communication passing over a telecommunications system for the purpose of tracing the location of the caller, the employee shall:
(a) communicate, or cause another employee of the carrier to communicate, the location of the caller to the person who made the request or to any other member of a police force; and
(b) communicate particulars of the interception to the Managing Director of the carrier.
(4) As soon as practicable after making to an employee of a carrier a request under, or purporting to be under, subsection (1) or (2), a member of a police force shall give, or cause another member of a police force to give, to the Managing Director of the carrier a written confirmation of the request that sets out the information given by the first‑mentioned member to that employee in connection with the request.
Part 2‑4—Authorisation of interception for developing and testing interception capabilities
31 Applications for authorisation
(1) The head (however described) of a security authority that has functions that include activities relating to developing or testing technologies, or interception capabilities, or a person acting as that head, may request the Attorney‑General to authorise, under section 31A, interception of communications passing over a telecommunications system:
(a) if one or more carriers are specified in the request for the purposes of this paragraph—by:
(i) employees of the security authority authorised under section 31B; and
(ii) employees of those carriers; or
(b) if no carriers are specified in the request for the purposes of paragraph (a)—by employees of the security authority authorised under section 31B.
(2) The request:
(a) must be in writing; and
(b) must include details of the development or testing of technologies, or interception capabilities, in relation to which authorisation is sought; and
(c) must include details of the extent to which the development or testing would involve, or would be likely to involve, interception of communications passing over a telecommunications system; and
(d) must refer to the functions of the authority that the development or testing would support; and
(e) must state the grounds for seeking the authorisation; and
(f) must summarise the outcomes of any previous authorisations given to the authority under section 31A in relation to the technology or interception capability that is the subject of the application; and
(g) must nominate the period (not exceeding 6 months) for which the authorisation is sought to be in force.
(3) The reference in subsection (1) and paragraph (2)(c) to interception of communications passing over a telecommunications system includes a reference to the accessing of the communications as stored communications after they have ceased to pass over a telecommunications system.
31A Attorney‑General may authorise interception for developing and testing interception capabilities
(1) Upon receiving the request, the Attorney‑General may authorise interception of communications passing over a telecommunications system:
(a) if one or more carriers are specified in the request for the purposes of paragraph 31(1)(a)—by:
(i) employees of the security authority authorised under section 31B; and
(ii) employees of those carriers; or
(b) if no carriers are specified in the request for the purposes of paragraph 31(1)(a)—by employees of the security authority authorised under section 31B.
(2) The authorisation is subject to:
(a) a condition prohibiting:
(i) interception of communications passing over a telecommunications system except for the purposes of development or testing of technologies, or interception capabilities; or
(ii) communicating, using or recording such communications except for such purposes; and
(b) any other conditions specified in the authorisation.
(3) The authorisation must be in writing and must specify the period (not exceeding 6 months) for which it will have effect.
(4) The head (however described) of the security authority, or a person acting as that head, must ensure that a copy of the authorisation is kept by the authority and is available for inspection on request by the Minister who is responsible for the authority.
(4A) If paragraph (1)(a) applies to the authorisation, this Part does not require that an authorised interception must involve:
(a) one or more employees of the security authority referred to in that paragraph; and
(b) one or more employees of a carrier referred to in that paragraph;
acting together or in the presence of each other.
(4B) To avoid doubt, subparagraph (2)(a)(ii) has the effect that lawfully intercepted information obtained under the authorisation may be communicated, used or recorded for the purposes of development or testing of technologies, or interception capabilities.
(4C) The reference in subsection (1) and subparagraph (2)(a)(i) to interception of communications passing over a telecommunications system includes a reference to the accessing of the communications as stored communications after they have ceased to pass over a telecommunications system.
(5) An authorisation given under subsection (1) is not a legislative instrument.
31AA Carrier to be notified of authorisation etc.
(1) If:
(a) the Attorney‑General gives a section 31A authorisation in response to an application made by:
(i) the head (however described) of a security authority; or
(ii) a person acting as that head; and
(b) the authorisation covers the employees of a carrier;
the head (however described) of the security authority, or a person acting as that head, must cause a copy of the authorisation to be given to the authorised representative of the carrier as soon as practicable.
(2) If:
(a) the Attorney‑General has given a section 31A authorisation in response to an application made by:
(i) the head (however described) of a security authority; or
(ii) a person acting as that head; and
(b) the authorisation is varied or revoked; and
(c) the authorisation covers the employees of a carrier;
the head (however described) of the security authority, or a person acting as that head, must cause:
(d) an authorised representative of the carrier to be immediately informed of the variation or revocation; and
(e) a copy of the variation or revocation to be given to the authorised representative as soon as practicable.
31AB Access to stored communications under section 31A authorisations
In addition to authorising interception of communications, a section 31A authorisation also authorises a person to access a stored communication if the section 31A authorisation would have authorised interception of the communication if it were still passing over a telecommunications system.
31B Authorisation of employees of a security authority
(1) The following persons:
(a) the head (however described) of a security authority;
(b) an officer of the security authority covered by an approval in force under subsection (2);
may, by writing, authorise employees of the authority for the purposes of this Part.
(2) The head (however described) of a security authority may, by writing, approve an officer of the authority for the purposes of paragraph (1)(b).
31C Destruction of records
(1) If:
(a) information, or a record, that was obtained, in the course of developing or testing technologies or interception capabilities, by interception of communications passing over a telecommunications system is in a security authority’s possession; and
(b) the information or record is no longer required in relation to the development or testing;
the head (however described) of the security authority, or a person acting as that head, must cause the information or record to be destroyed as soon as practicable.
(2) The reference in paragraph (1)(a) to interception of communications passing over a telecommunications system includes a reference to the accessing of the communications as stored communications after they have ceased to pass over a telecommunications system.
31D Reports to the Attorney‑General
The head (however described) of a security authority, or a person acting as that head, must give to the Attorney‑General, within 3 months after an authorisation under section 31A given to the authority ceases to have effect, a written report about:
(a) the outcome of the development or testing of technologies, or interception capabilities, in relation to which the authorisation was given; and
(b) the destruction of information or records under section 31C.
31E Employees of security authorities
(1) For the purposes of this Part:
(a) an ASIO employee is taken to be an employee of the Organisation; and
(b) an ASIO affiliate is taken to be an employee of the Organisation.
(2) For the purposes of this Part, if:
(a) a person is a staff member (within the meaning of the Intelligence Services Act 2001) of an agency (within the meaning of that Act); and
(b) the agency is a security authority;
the person is taken to be an employee of the security authority.
Part 2‑5—Warrants authorising agencies to intercept telecommunications
Division 2—Declaration of State Law Enforcement Authorities as Agencies
34 Declaration of an eligible authority of a State as an agency
Subject to section 35, the Minister may, by legislative instrument and at the request of the Premier of a State, declare an eligible authority of that State to be an agency for the purposes of this Act.
Note: The declaration may also authorise the eligible authority to apply for Part 5.3 warrants or Part 9.10 warrants: see sections 38A and 38B.
35 Preconditions for declaration
(1) The Minister shall not make a declaration under section 34 in relation to an eligible authority of a State unless he or she is satisfied that the law (in this subsection called the relevant law) of that State makes satisfactory provision:
(a) imposing on the chief officer of the eligible authority requirements corresponding to the requirements that section 80 (other than paragraphs 80(f) and (g)) and section 81 (other than paragraph 81(1)(h), and subsection 81(2), so far as that subsection relates to paragraph 81(1)(h)) impose on the chief officer of a Commonwealth agency; and
(c) requiring the chief officer of the eligible authority to give to a specified Minister (in this subsection called the responsible Minister) of that State, within 3 months after a warrant issued to the eligible authority ceases to be in force, a written report about:
(i) the use made by the eligible authority of information obtained by interceptions under the warrant; and
(ii) the communication of such information to persons other than officers of the eligible authority; and
(d) requiring the chief officer of the eligible authority to give to the responsible Minister as soon as practicable, and in any event within 3 months, after each 30 June, a written report that sets out such information as:
(i) Division 2 of Part 2‑8 requires to be set out in the Minister’s report under that Division relating to the year ending on that 30 June; and
(ii) can be derived from the eligible authority’s records; and
(e) requiring the responsible Minister to give to the Minister, as soon as practicable after a report of a kind referred to in paragraph (c) or (d) is given to the responsible Minister, a copy of the report; and
(f) requiring the chief officer of the eligible authority to cause a restricted record (whether made before or after the commencement of this section) that is in the possession of the eligible authority to be kept, except when it is being otherwise dealt with in accordance with this Act and the relevant law, in a secure place where it is not accessible to persons other than persons who are entitled so to deal with it; and
(g) requiring the chief officer of the eligible authority to cause a restricted record of a kind referred to in paragraph (f) to be destroyed forthwith where the chief officer is satisfied that the restricted record is not likely to be required for a permitted purpose in relation to the eligible authority, other than a purpose connected with an inspection of the kind referred to in paragraph (h) or with a report on such an inspection; and
(h) requiring regular inspections of the eligible authority’s records, for the purpose of ascertaining the extent of compliance by the officers of the eligible authority with the requirements referred to in paragraphs (a), (f) and (g) of this subsection, to be made by an authority of that State that is independent of the eligible authority and on which sufficient powers have been conferred to enable the independent authority to make a proper inspection of those records for that purpose; and
(ha) requiring that a person who performs a function or exercises a power under section 44A or 45 in relation to an application by an eligible authority for a warrant must not undertake an inspection of the eligible authority’s records for the purpose referred to in paragraph (h) in relation to a record of the eligible authority that relates to the application; and
(j) requiring an authority of that State that has made an inspection of the eligible authority’s interception records for the purpose referred to in paragraph (h) to report in writing to the responsible Minister about the results of the inspection; and
(k) empowering an authority of that State that, as a result of inspecting the eligible authority’s records for the purpose referred to in paragraph (h), is of the opinion that an officer of the eligible authority has contravened:
(i) a provision of this Act; or
(ii) a requirement referred to in paragraph (c);
to include in the report on the inspection a report on the contravention; and
(m) requiring the responsible Minister to give to the Minister, as soon as practicable after a report on an inspection of the kind referred to in paragraph (j) is given to the responsible Minister, a copy of the report.
(1A) Paragraphs (1)(f) and (g) do not apply to a restricted record that is a record of a communication that was intercepted under paragraph 7(2)(aaa).
(2) The Minister must not make a declaration under section 34 in relation to an eligible authority of a State unless the Minister is satisfied that that State has entered into an agreement to pay all expenses connected with the issue of warrants to the authority.
36 State laws requiring copies of documents to be given to responsible Minister
(1) Nothing in this Division is to be taken to preclude a law of a State from requiring the chief officer of the eligible authority to give to a specified Minister (the responsible Minister) of that State a copy of each warrant issued to the eligible authority, and of each instrument under section 52 or 57 revoking such a warrant.
(2) If a State makes a law of the kind mentioned in subsection (1), then, for the purposes of section 63AA, the chief officer of the eligible authority is taken to be communicating interception warrant information for the purposes of this Part by giving documents to the responsible Minister to comply with the requirement.
37 Revocation of declaration
(1) If requested by the Premier of a State to revoke a declaration in force under section 34 in relation to an eligible authority of that State, the Minister shall, by notice in writing published in the Gazette, revoke the declaration.
(2) Subject to subsection (1), the Minister may, by notice in writing published in the Gazette, revoke a declaration in force under section 34 in relation to an eligible authority of a State if, and only if, the Minister is satisfied that:
(a) the law of that State no longer makes satisfactory provision in relation to the authority as mentioned in subsection 35(1);
(b) the extent of compliance with a requirement of a law of that State, being a requirement of a kind referred to in subsection 35(1), has been unsatisfactory in so far as the requirement relates to the authority;
(c) no agreement of the kind referred to in subsection 35(2), being an agreement entered into by that State that relates to the authority, is in force;
(d) the extent of compliance by that State with the terms of an agreement of the kind referred to in subsection 35(2), being an agreement entered into by that State, has been unsatisfactory in so far as the agreement relates to the authority; or
(e) the extent of compliance by the chief officer of the authority, or by officers of the authority, with this Act has been unsatisfactory.
38 Effect of revocation
Where a declaration under section 34 in relation to an eligible authority of a State is revoked, this Act:
(a) continues to apply in relation to a warrant that was issued to the authority before the revocation; and
(b) so applies at a particular time as if the authority were an agency at that time.
38A Agencies authorised to apply for Part 5.3 warrants
(1) This section applies to a declaration made under section 34 in relation to an eligible authority of a State.
Authorisation
(2) When the Minister makes the declaration, the Minister must, in the declaration, authorise the eligible authority to apply for Part 5.3 warrants if:
(a) the Premier of the State requests that the eligible authority be so authorised; and
(b) the Minister is satisfied as mentioned in subsection (4) of this section.
(3) The Minister must amend the declaration to authorise the eligible authority to apply for Part 5.3 warrants if:
(a) the declaration does not already so authorise the eligible authority; and
(b) the Premier of the State requests that the eligible authority be so authorised; and
(c) the Minister is satisfied as mentioned in subsection (4).
Criteria to be authorised to apply for a Part 5.3 warrant
(4) For the purposes of paragraph (2)(b) or (3)(c), the Minister must be satisfied that the law of the State makes satisfactory provision:
(a) imposing on the chief officer of the eligible authority requirements corresponding to the requirements that paragraphs 80(f) and (g) and 81(1)(h) and subsection 81(2), so far as that subsection relates to paragraph 81(1)(h), impose on the chief officer of a Commonwealth agency; and
(b) imposing on the chief officer of the eligible authority requirements corresponding to the requirements that section 59B imposes on the chief officer of a Commonwealth agency; and
(c) giving an authority of the State powers corresponding to those that subsections 83(3) and 84(2) and sections 85 and 85A give to the Ombudsman, if the authority of the State receives a notice from the eligible authority because of the requirements mentioned in paragraph (b) of this subsection; and
(d) requiring an authority of the State that has made an inspection of the eligible authority’s records under the powers mentioned in paragraph (c) to report in writing to the responsible Minister about the results of the inspection; and
(e) requiring the responsible Minister to give to the Minister, as soon as practicable, a copy of a report that an authority of the State gives to the responsible Minister under a power or requirement mentioned in paragraph (c) or (d).
Removal of authorisation
(5) The Minister must amend the declaration to remove the authorisation of the eligible authority to apply for Part 5.3 warrants if the Premier of the State requests the Minister to remove the authorisation.
(6) The Minister may amend the declaration to remove the authorisation of the eligible authority to apply for Part 5.3 warrants if the Minister is satisfied that:
(a) the law of the State no longer makes satisfactory provision in relation to the eligible authority as mentioned in subsection (4); or
(b) the extent of compliance with a requirement of a law of that State, being a requirement of a kind mentioned in subsection (4), has been unsatisfactory in so far as the requirement relates to the eligible authority; or
(c) the extent of compliance by the chief officer of the eligible authority, or by officers of the eligible authority, with this Act has been unsatisfactory, so far as this Act relates to Part 5.3 warrants.
(7) If the Minister amends the declaration under subsection (5) or (6), the amendment does not affect the validity of a Part 5.3 warrant issued before the amendment in response to an application by the eligible authority.
38B Agencies authorised to apply for Part 9.10 warrants
(1) This section applies to a declaration made under section 34 in relation to an eligible authority of a State.
Authorisation
(2) When the Minister makes the declaration, the Minister must, in the declaration, authorise the eligible authority to apply for Part 9.10 warrants if:
(a) the Premier of the State requests that the eligible authority be so authorised; and
(b) the Minister is satisfied as mentioned in subsection (4) of this section.
(3) The Minister must amend the declaration to authorise the eligible authority to apply for Part 9.10 warrants if:
(a) the declaration does not already so authorise the eligible authority; and
(b) the Premier of the State requests that the eligible authority be so authorised; and
(c) the Minister is satisfied as mentioned in subsection (4).
Criteria to be authorised to apply for a Part 9.10 warrant
(4) For the purposes of paragraph (2)(b) or (3)(c), the Minister must be satisfied that the law of the State makes satisfactory provision:
(a) imposing on the chief officer of the eligible authority requirements corresponding to the requirements that paragraphs 80(f) and (g) and 81(1)(h) and subsection 81(2), so far as that subsection relates to paragraph 81(1)(h), impose on the chief officer of a Commonwealth agency; and
(b) imposing on the chief officer of the eligible authority requirements corresponding to the requirements that section 59C imposes on the chief officer of a Commonwealth agency; and
(c) giving an authority of the State powers corresponding to those that subsections 83(3) and 84(2) and sections 85 and 85B give to the Ombudsman, if the authority of the State receives a notice from the eligible authority because of the requirements mentioned in paragraph (b) of this subsection; and
(d) requiring an authority of the State that has made an inspection of the eligible authority’s records under the powers mentioned in paragraph (c) to report in writing to the responsible Minister about the results of the inspection; and
(e) requiring the responsible Minister to give to the Minister, as soon as practicable, a copy of a report that an authority of the State gives to the responsible Minister under a power or requirement mentioned in paragraph (c) or (d).
Removal of authorisation
(5) The Minister must amend the declaration to remove the authorisation of the eligible authority to apply for Part 9.10 warrants if the Premier of the State requests the Minister to remove the authorisation.
(6) The Minister may amend the declaration to remove the authorisation of the eligible authority to apply for Part 9.10 warrants if the Minister is satisfied that:
(a) the law of the State no longer makes satisfactory provision in relation to the eligible authority as mentioned in subsection (4); or
(b) the extent of compliance with a requirement of a law of that State, being a requirement of a kind mentioned in subsection (4), has been unsatisfactory in so far as the requirement relates to the eligible authority; or
(c) the extent of compliance by the chief officer of the eligible authority, or by officers of the eligible authority, with this Act has been unsatisfactory, so far as this Act relates to Part 9.10 warrants.
(7) If the Minister amends the declaration under subsection (5) or (6), the amendment does not affect the validity of a Part 9.10 warrant issued before the amendment in response to an application by the eligible authority.
Division 3—Applications for warrants
39 Agency may apply for warrant
(1) An agency may apply for a warrant in respect of a telecommunications service or a person to:
(a) for an application made by the National Anti‑Corruption Commission—an eligible Judge; or
(b) otherwise—an eligible Judge or a nominated ART member.
(2) An application for a warrant shall be made on an agency’s behalf by:
(a) in the case of the Australian Federal Police—a member of the Australian Federal Police; or
(aa) in the case of the National Anti‑Corruption Commission:
(i) the National Anti‑Corruption Commissioner; or
(ii) a National Anti‑Corruption Deputy Commissioner; or
(iii) a staff member of the National Anti‑Corruption Commission who is authorised in writing by the National Anti‑Corruption Commissioner for the purposes of this paragraph; or
(b) in the case of the ACC:
(i) the Chief Executive Officer of the ACC or an examiner; or
(ii) a member of a police force who is a member of the staff of the ACC; or
(c) in the case of the Police Force of a State—an officer of that Police Force; or
(d) in the case of the Crime Commission (NSW):
(i) a member of the Crime Commission (NSW); or
(ii) a member of the staff of the Crime Commission (NSW); or
(e) in the case of the Independent Commission Against Corruption (NSW)—an officer of the Independent Commission Against Corruption (NSW); or
(ea) in the case of the IBAC (Vic.)—an IBAC (Vic.) officer; or
(f) in the case of the Crime and Corruption Commission (Qld)—a commission officer (within the meaning of the Crime and Corruption Act (Qld)); or
(g) in the case of the Law Enforcement Conduct Commission (NSW):
(i) the Chief Commissioner of the Commission; or
(ii) the Commissioner for Integrity of the Commission; or
(iii) an Assistant Commissioner of the Commission; or
(iv) a member of the staff of the Law Enforcement Conduct Commission (NSW); or
(i) in the case of the Corruption and Crime Commission (WA)—an officer of the Corruption and Crime Commission (WA); or
(j) in the case of the Independent Commission Against Corruption (SA):
(i) the Commissioner of the Independent Commission Against Corruption (SA); or
(ii) the Deputy Commissioner of the Independent Commission Against Corruption (SA); or
(iii) a member of the staff of the Independent Commission Against Corruption (SA).
40 Form of application
(1) Subject to subsection (2), an application for a warrant shall be in writing.
(2) If the person making an application for a warrant on an agency’s behalf:
(a) is the chief officer of the agency or a person in relation to whom an authorisation by the chief officer is in force under subsection (3); and
(b) thinks it necessary, because of urgent circumstances, to make the application by telephone;
the person may make the application by telephone.
(3) The chief officer of an agency may authorise in writing, for the purposes of subsection (2), persons who, or classes of persons who, are entitled under section 39 to make applications on the agency’s behalf.
41 Contents of application
A written application by an agency for a warrant shall set out:
(a) the name of the agency; and
(b) the name of the person making the application on the agency’s behalf.
42 Affidavit to accompany written application
(1) A written application by an agency for a warrant shall be accompanied by an affidavit complying with this section.
(2) The affidavit shall set out the facts and other grounds on which the application is based.
(3) The affidavit shall specify the period for which it is requested that the warrant be in force and shall state why it is considered necessary for the warrant to be in force for that period.
(4) If the application is for a telecommunications service warrant, the affidavit shall set out, in relation to the service, and in relation to each person to whom the application relates, the following information, so far as it can be derived from the agency’s records:
(a) the number of previous applications (if any) for warrants that the agency has made and that related to the service or to that person, as the case may be;
(b) the number of warrants (if any) previously issued on such applications; and
(c) particulars of the use made by the agency of information obtained by interceptions under such warrants.
(4A) If the application is for a named person warrant, the affidavit must set out:
(a) the name or names by which the person is known; and
(b) details (to the extent these are known to the chief officer) sufficient to identify the telecommunications services the person is using, or is likely to use; and
(ba) if the warrant would authorise interception of communications made by means of a telecommunications device or telecommunications devices identified in the warrant—details (to the extent these are known to the chief officer) sufficient to identify the telecommunications device or telecommunications devices that the person is using, or is likely to use; and
(c) the number of previous applications (if any) for warrants that the agency has made and that related to the person or to a service that the person has used; and
(d) the number of warrants (if any) previously issued on such applications; and
(e) particulars of the use made by the agency of information obtained by interceptions under such warrants.
(5) Notwithstanding subsection (1), a written application may be accompanied by 2 or more affidavits that together set out each matter that, but for this subsection, this section would have required an affidavit accompanying the application to set out, specify or state.
43 Information to be given on telephone application
The information given to a Judge or nominated ART member in connection with a telephone application to the Judge or nominated ART member:
(a) shall include particulars of the urgent circumstances because of which the person making the application on the agency’s behalf thinks it necessary to make the application by telephone;
(b) shall include each matter that, if the application had been made in writing, section 41, 42 or 48 would have required the application, or an affidavit accompanying it, to set out, specify or state; and
(c) shall be given orally or in writing, as the Judge or nominated ART member directs.
44 Giving further information to Judge
(1) A Judge or nominated ART member may require further information to be given in connection with an application to the Judge or nominated ART member for a warrant.
(2) The further information:
(a) shall be given on oath if the application was made in writing; and
(b) shall be given orally or otherwise, as the Judge or nominated ART member directs.
44A Application by interception agency of Victoria
Scope
(1) This section applies if an interception agency of Victoria applies, under section 39, to an eligible Judge or nominated ART member for a warrant in respect of a telecommunications service or a person.
PIM may make submissions
(2) A Victorian PIM may, orally or in writing, make submissions to the Judge or nominated ART member about the following matters:
(a) in relation to an application for a warrant in respect of a telecommunications service—the matters mentioned in paragraphs 46(2)(a) to (f), 46(5)(a) to (gb), 46(8)(a) to (e), 46(10)(a) to (h) or 46(13)(a) to (e), as the case requires;
(b) in relation to an application for a warrant in respect of a person—the matters mentioned in paragraphs 46A(2)(a) to (f), 46A(2B)(a) to (gb), 46A(2D)(a) to (e), 46A(2F)(a) to (h) or 46A(2H)(a) to (e), as the case requires.
PIM may question certain persons
(3) The Victorian PIM may, for the purpose of making submissions under subsection (2), question:
(a) the person making the application for the warrant on the interception agency’s behalf; or
(b) a person who, under section 44, is required by the Judge or nominated ART member to give further information to the Judge or nominated ART member in connection with the application.
However, the Victorian PIM may only do so in the presence of the eligible Judge or nominated ART member.
45 Application by interception agency of Queensland
Scope
(1) This section applies if an interception agency of Queensland applies, under section 39, to an eligible Judge or nominated ART member for a warrant in respect of a telecommunications service or a person.
PIM may make submissions
(2) A Queensland PIM may, orally or in writing, make submissions to the Judge or nominated ART member about the following matters:
(a) in relation to an application for a warrant in respect of a telecommunications service—the matters mentioned in paragraphs 46(2)(a) to (f), 46(5)(a) to (gb), 46(8)(a) to (e), 46(10)(a) to (h) or 46(13)(a) to (e), as the case requires;
(b) in relation to an application for a warrant in respect of a person—the matters mentioned in paragraphs 46A(2)(a) to (f), 46A(2B)(a) to (gb), 46A(2D)(a) to (e), 46A(2F)(a) to (h) or 46A(2H)(a) to (e), as the case requires.
PIM may question certain persons
(3) The Queensland PIM may, for the purpose of making submissions under subsection (2), question:
(a) the person making the application for the warrant on the interception agency’s behalf; or
(b) a person who, under section 44, is required by the Judge or nominated ART member to give further information to the Judge or nominated ART member in connection with the application.
However, the Queensland PIM may only do so in the presence of the eligible Judge or nominated ART member.
(4) A Queensland PIM may delegate to a Queensland deputy PIM the Queensland PIM’s power under subsection (2) or (3), or both. The delegation must be in writing.
(5) In exercising powers under the delegation, the Queensland deputy PIM must comply with any directions of the Queensland PIM.
45A State law not affected
If:
(a) a person (the applicant) applies, or proposes to apply, under section 39, on behalf of an interception agency of Victoria or Queensland for a warrant in respect of a telecommunications service or a person; and
(b) a law of that State authorises or requires the applicant:
(i) to notify the PIM of that State of the application or proposed application; or
(ii) to notify the PIM of that State of any information that relates to the application or proposed application; or
(iii) to give the PIM of that State any document that relates to the application or proposed application;
then nothing in this Act prevents the applicant from making the notification or giving the document to the PIM of that State.
Division 4—Warrants
46 Issue of telecommunications service warrant
Warrant relating to the investigation of one or more serious offences
(1) Where an agency applies to an eligible Judge or nominated ART member for a warrant in respect of a telecommunications service and the Judge or nominated ART member is satisfied, on the basis of the information given to the Judge or nominated ART member under this Part in connection with the application, that:
(a) Division 3 has been complied with in relation to the application; and
(b) in the case of a telephone application—because of urgent circumstances, it was necessary to make the application by telephone; and
(c) there are reasonable grounds for suspecting that a particular person is using, or is likely to use, the service; and
(d) information that would be likely to be obtained by intercepting under a warrant communications made to or from the service would be likely to assist in connection with the investigation by the agency of a serious offence, or serious offences, in which:
(i) the particular person is involved; or
(ii) another person is involved with whom the particular person is likely to communicate using the service; and
(e) having regard to the matters referred to in subsection (2), and to no other matters, the Judge or nominated ART member should issue a warrant authorising such communications to be intercepted;
the Judge or nominated ART member may, in his or her discretion, issue such a warrant.
Note: Subparagraph (d)(ii)—subsection (3) restricts the issuing of warrants if subparagraph (d)(ii) applies.
(2) For the purposes of subsection (1), the matters to which the Judge or nominated ART member shall have regard are:
(a) how much the privacy of any person or persons would be likely to be interfered with by intercepting under a warrant communications made to or from the service referred to in subsection (1); and
(b) the gravity of the conduct constituting the offence or offences being investigated; and
(c) how much the information referred to in paragraph (1)(d) would be likely to assist in connection with the investigation by the agency of the offence or offences; and
(d) to what extent methods of investigating the offence or offences that do not involve so intercepting communications have been used by, or are available to, the agency; and
(e) how much the use of such methods would be likely to assist in connection with the investigation by the agency of the offence or offences; and
(f) how much the use of such methods would be likely to prejudice the investigation by the agency of the offence or offences, whether because of delay or for any other reason; and
(fa) in relation to an application by an interception agency of Victoria—any submissions made by the Victorian PIM under section 44A to the Judge or nominated ART member; and
(g) in relation to an application by an interception agency of Queensland—any submissions made by the Queensland PIM under section 45 to the Judge or nominated ART member.
(3) The Judge or nominated ART member must not issue a warrant under subsection (1) in a case in which subparagraph (1)(d)(ii) applies unless he or she is satisfied that:
(a) the agency has exhausted all other practicable methods of identifying the telecommunications services used, or likely to be used, by the person involved in the offence or offences referred to in paragraph (1)(d); or
(b) interception of communications made to or from a telecommunications service used or likely to be used by that person would not otherwise be possible.
Warrant sought for Part 5.3 supervisory order
(4) If a Part 5.3 warrant agency applies to an eligible Judge or nominated ART member for a warrant in respect of a telecommunications service and the Judge or nominated ART member is satisfied, on the basis of the information given to the Judge or nominated ART member under this Part in connection with the application, that:
(a) Division 3 has been complied with in relation to the application; and
(b) in the case of a telephone application—because of urgent circumstances, it was necessary to make the application by telephone; and
(c) there are reasonable grounds for suspecting that a particular person is using, or is likely to use, the service; and
(d) either:
(i) a Part 5.3 supervisory order is in force in relation to the particular person; or
(ii) a Part 5.3 supervisory order is in force in relation to another person, and the particular person is likely to communicate with the other person using the service; and
(e) information that would be likely to be obtained by intercepting under a warrant communications made to or from the service would be likely to substantially assist in connection with:
(i) achieving a Part 5.3 object; or
(ii) determining whether the Part 5.3 supervisory order, or any succeeding Part 5.3 supervisory order, has been, or is being, complied with; and
(f) having regard to the matters referred to in subsection (5), and to no other matters, the Judge or nominated ART member should issue a warrant authorising such communications to be intercepted;
the Judge or nominated ART member may, in his or her discretion, issue such a warrant.
Note 1: Subsection (6) restricts the issuing of warrants if subparagraph (d)(ii) applies.
Note 2: For Part 5.3 supervisory orders that have been made but not come into force, see section 6T.
(5) For the purposes of subsection (4), the matters to which the Judge or nominated ART member must have regard are:
(a) how much the privacy of any person or persons would be likely to be interfered with by intercepting under a warrant communications made to or from the service referred to in subsection (4); and
(b) how much the information referred to in paragraph (4)(e) would be likely to assist in connection with:
(i) achieving a Part 5.3 object; or
(ii) determining whether the Part 5.3 supervisory order, or any succeeding Part 5.3 supervisory order, has been, or is being, complied with; and
(c) to what extent methods for:
(i) achieving a Part 5.3 object; or
(ii) determining whether the Part 5.3 supervisory order, or any succeeding Part 5.3 supervisory order, has been, or is being, complied with;
that do not involve so intercepting communications have been used by, or are available to, the agency; and
(d) how much the use of such methods would be likely to assist in connection with:
(i) achieving a Part 5.3 object; or
(ii) determining whether the Part 5.3 supervisory order, or any succeeding Part 5.3 supervisory order, has been, or is being, complied with; and
(e) how much the use of such methods would be likely to prejudice:
(i) achieving a Part 5.3 object; or
(ii) determining whether the Part 5.3 supervisory order, or any succeeding Part 5.3 supervisory order, has been, or is being, complied with;
whether because of delay or for any other reason; and
(f) whether intercepting under a warrant communications made to or from the service referred to in subsection (4) would be the method that is likely to have the least interference with any person’s privacy; and
(g) in relation to a Part 5.3 supervisory order that is a control order—the possibility that the person in relation to whom the control order is in force:
(i) has engaged, is engaging, or will engage, in a terrorist act; or
(ii) has provided, is providing, or will provide, support for a terrorist act; or
(iii) has facilitated, is facilitating, or will facilitate, a terrorist act; or
(iv) has provided, is providing, or will provide, support for the engagement in a hostile activity in a foreign country; or
(v) has facilitated, is facilitating, or will facilitate, the engagement in a hostile activity in a foreign country; and
(ga) in relation to a Part 5.3 supervisory order that is an extended supervision order or interim supervision order—the possibility that the person in relation to whom the order is in force has committed, is committing, or will commit a serious Part 5.3 offence; and
(gb) in relation to any Part 5.3 supervisory order—the possibility that the person in relation to whom the order is in force:
(i) has contravened, is contravening or will contravene the Part 5.3 supervisory order; or
(ii) will contravene a succeeding Part 5.3 supervisory order; and
(h) in relation to an application by an interception agency of Victoria—any submissions made by the Victorian PIM under section 44A to the Judge or nominated ART member; and
(i) in relation to an application by an interception agency of Queensland—any submissions made by the Queensland PIM under section 45 to the Judge or nominated ART member.
(6) The Judge or nominated ART member must not issue a warrant in a case in which subparagraph (4)(d)(ii) applies unless he or she is satisfied that:
(a) the agency has exhausted all other practicable methods of identifying the telecommunications services used, or likely to be used, by the person to whom the Part 5.3 supervisory order referred to in subparagraph (4)(d)(ii) relates; or
(b) interception of communications made to or from a telecommunications service used or likely to be used by that person would not otherwise be possible.
Warrant sought for post‑sentence order application
(7) If a Part 5.3 warrant agency applies to an eligible Judge or nominated ART member for a warrant in respect of a telecommunications service and the Judge or nominated ART member is satisfied, on the basis of the information given to the Judge or nominated ART member under this Part in connection with the application, that:
(a) Division 3 has been complied with in relation to the application; and
(b) in the case of a telephone application—because of urgent circumstances, it was necessary to make the application by telephone; and
(c) there are reasonable grounds for suspecting that a particular person is using, or is likely to use, the service; and
(d) the person is a terrorist offender in relation to whom an application for a post‑sentence order could be made; and
(e) the person is detained in custody in a prison; and
(f) there are reasonable grounds to suspect that there is an appreciable risk of the person committing a serious Part 5.3 offence; and
(g) consideration is being given, will be given, or is likely to be given, by the AFP Minister (or a person on behalf of the AFP Minister), as to whether to apply for a post‑sentence order in relation to the person; and
(h) information that would be likely to be obtained by intercepting under a warrant communications made to or from the service would be likely to assist in determining whether to apply for the post‑sentence order; and
(i) having regard to the matters referred to in subsection (8), and to no other matters, the Judge or nominated ART member should issue a warrant authorising such communications to be intercepted;
the Judge or nominated ART member may, in the Judge’s or member’s discretion, issue such a warrant.
(8) For the purposes of subsection (7), the matters to which the Judge or nominated ART member must have regard are:
(a) how much the privacy of any person or persons would be likely to be interfered with by intercepting under a warrant communications made to or from the service referred to in subsection (7); and
(b) how much the information referred to in paragraph (7)(h) would be likely to assist in determining whether to apply for the post‑sentence order; and
(c) to what extent methods of determining whether to apply for the post‑sentence order that do not involve so intercepting communications have been used by, or are available to, the AFP Minister (or a legal representative of the AFP Minister); and
(d) how much the use of such methods would be likely to assist in determining whether to apply for the post‑sentence order; and
(e) how much the use of such methods would be likely to prejudice determining whether to apply for the post‑sentence order, whether because of delay or for any other reason; and
(f) in relation to an application by an interception agency of Victoria—any submissions made by the Victorian PIM under section 44A to the Judge or nominated ART member; and
(g) in relation to an application by an interception agency of Queensland—any submissions made by the Queensland PIM under section 45 to the Judge or nominated ART member.
Warrant sought for community safety supervision order
(9) If a Part 9.10 warrant agency applies to an eligible Judge or nominated ART member for a warrant in respect of a telecommunications service and the Judge or nominated ART member is satisfied, on the basis of the information given to the Judge or nominated ART member under this Part in connection with the application, that:
(a) Division 3 has been complied with in relation to the application; and
(b) in the case of a telephone application—because of urgent circumstances, it was necessary to make the application by telephone; and
(c) there are reasonable grounds for suspecting that a particular person is using, or is likely to use, the service; and
(d) either:
(i) a community safety supervision order is in force in relation to the particular person; or
(ii) a community safety supervision order is in force in relation to another person, and the particular person is likely to communicate with the other person using the service; and
(e) information that would be likely to be obtained by intercepting under a warrant communications made to or from the service would be likely to substantially assist in connection with:
(i) achieving a Part 9.10 object; or
(ii) determining whether the community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with; and
(f) having regard to the matters referred to in subsection (10), and to no other matters, the Judge or nominated ART member should issue a warrant authorising such communications to be intercepted;
the Judge or nominated ART member may, in the Judge or member’s discretion, issue such a warrant.
Note 1: Subsection (11) restricts the issuing of warrants if subparagraph (d)(ii) applies.
Note 2: For community safety supervision orders that have been made but not come into force, see section 6UA.
(10) For the purposes of subsection (9), the matters to which the Judge or nominated ART member must have regard are:
(a) how much the privacy of any person or persons would be likely to be interfered with by intercepting under a warrant communications made to or from the service referred to in subsection (9); and
(b) how much the information referred to in paragraph (9)(e) would be likely to assist in connection with:
(i) achieving a Part 9.10 object; or
(ii) determining whether the community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with; and
(c) to what extent methods for:
(i) achieving a Part 9.10 object; or
(ii) determining whether the community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with;
that do not involve so intercepting communications have been used by, or are available to, the agency; and
(d) how much the use of such methods would be likely to assist in connection with:
(i) achieving a Part 9.10 object; or
(ii) determining whether the community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with; and
(e) how much the use of such methods would be likely to prejudice:
(i) achieving a Part 9.10 object; or
(ii) determining whether the community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with;
whether because of delay or for any other reason; and
(f) whether intercepting under a warrant communications made to or from the service referred to in subsection (9) would be the method that is likely to have the least interference with any person’s privacy; and
(g) the possibility that the person in relation to whom the order is in force has committed, is committing, or will commit a serious violent or sexual offence; and
(h) the possibility that the person in relation to whom the order is in force:
(i) has contravened, is contravening or will contravene the community safety supervision order; or
(ii) will contravene a succeeding community safety supervision order; and
(i) in relation to an application by an interception agency of Victoria—any submissions made by the Victorian PIM under section 44A to the Judge or nominated ART member; and
(j) in relation to an application by an interception agency of Queensland—any submissions made by the Queensland PIM under section 45 to the Judge or nominated ART member.
(11) The Judge or nominated ART member must not issue a warrant in a case in which subparagraph (9)(d)(ii) applies unless the Judge or nominated ART member is satisfied that:
(a) the agency has exhausted all other practicable methods of identifying the telecommunications services used, or likely to be used, by the person to whom the community safety supervision order referred to in subparagraph (9)(d)(ii) relates; or
(b) interception of communications made to or from a telecommunications service used or likely to be used by that person would not otherwise be possible.
Warrant sought for Part 9.10 order application
(12) If a Part 9.10 warrant agency applies to an eligible Judge or nominated ART member for a warrant in respect of a telecommunications service and the Judge or nominated ART member is satisfied, on the basis of the information given to the Judge or nominated ART member under this Part in connection with the application, that:
(a) Division 3 has been complied with in relation to the application; and
(b) in the case of a telephone application—because of urgent circumstances, it was necessary to make the application by telephone; and
(c) there are reasonable grounds for suspecting that a particular person is using, or is likely to use, the service; and
(d) the person is a serious offender in relation to whom an application for a Part 9.10 order could be made; and
(e) there are reasonable grounds to suspect that there is an appreciable risk of the person committing a serious violent or sexual offence; and
(f) consideration is being given, will be given, or is likely to be given, by the Immigration Minister (or a person on behalf of the Immigration Minister), as to whether to apply for a Part 9.10 order in relation to the person; and
(g) information that would be likely to be obtained by intercepting under a warrant communications made to or from the service would be likely to assist in determining whether to apply for the Part 9.10 order; and
(h) having regard to the matters referred to in subsection (13), and to no other matters, the Judge or nominated ART member should issue a warrant authorising such communications to be intercepted;
the Judge or nominated ART member may, in the Judge’s or member’s discretion, issue such a warrant.
(13) For the purposes of subsection (12), the matters to which the Judge or nominated ART member must have regard are:
(a) how much the privacy of any person or persons would be likely to be interfered with by intercepting under a warrant communications made to or from the service referred to in subsection (12); and
(b) how much the information referred to in paragraph (12)(g) would be likely to assist in determining whether to apply for the Part 9.10 order; and
(c) to what extent methods of determining whether to apply for the Part 9.10 order that do not involve so intercepting communications have been used by, or are available to, the Immigration Minister (or a legal representative of the Immigration Minister); and
(d) how much the use of such methods would be likely to assist in determining whether to apply for the Part 9.10 order; and
(e) how much the use of such methods would be likely to prejudice determining whether to apply for the Part 9.10 order, whether because of delay or for any other reason; and
(f) in relation to an application by an interception agency of Victoria—any submissions made by the Victorian PIM under section 44A to the Judge or nominated ART member; and
(g) in relation to an application by an interception agency of Queensland—any submissions made by the Queensland PIM under section 45 to the Judge or nominated ART member.
46A Issue of named person warrant
Warrant relating to the investigation of one or more serious offences
(1) Where an agency applies to an eligible Judge or nominated ART member for a warrant in respect of a person and the Judge or nominated ART member is satisfied, on the basis of the information given to the Judge or nominated ART member under this Part in connection with the application, that:
(a) Division 3 has been complied with in relation to the application; and
(b) in the case of a telephone application—because of urgent circumstances, it was necessary to make the application by telephone; and
(c) there are reasonable grounds for suspecting that a particular person is using, or is likely to use, more than one telecommunications service; and
(d) information that would be likely to be obtained by intercepting under a warrant:
(i) communications made to or from any telecommunications service that the person is using, or is likely to use; or
(ii) communications made by means of a particular telecommunications device or particular telecommunications devices that the person is using, or is likely to use;
would be likely to assist in connection with the investigation by the agency of a serious offence, or serious offences, in which the person is involved; and
(e) having regard to the matters referred to in subsection (2), and to no other matters, the Judge or nominated ART member should issue a warrant authorising such communications to be intercepted;
the Judge or nominated ART member may, in his or her discretion, issue such a warrant.
Note: Subsection (3) restricts the issuing of a warrant authorising interception of communications made by means of a telecommunications device or telecommunications devices identified in the warrant.
(2) For the purposes of subsection (1), the matters to which the Judge or nominated ART member must have regard are:
(a) how much the privacy of any person or persons would be likely to be interfered with by intercepting under a warrant:
(i) communications made to or from any telecommunications service used, or likely to be used, by the person in respect of whom the warrant is sought; or
(ii) communications made by means of a particular telecommunications device or particular telecommunications devices used, or likely to be used, by the person in respect of whom the warrant is sought;
as the case requires; and
(b) the gravity of the conduct constituting the offence or offences being investigated; and
(c) how much the information referred to in paragraph (1)(d) would be likely to assist in connection with the investigation by the agency of the offence or offences; and
(d) to what extent methods (including the use of a warrant issued under section 46) of investigating the offence or offences that do not involve the use of a warrant issued under this section in relation to the person have been used by, or are available to, the agency; and
(e) how much the use of such methods would be likely to assist in connection with the investigation by the agency of the offence or offences; and
(f) how much the use of such methods would be likely to prejudice the investigation by the agency of the offence or offences, whether because of delay or for any other reason; and
(fa) in relation to an application by an interception agency of Victoria—any submissions made by the Victorian PIM under section 44A to the Judge or nominated ART member; and
(g) in relation to an application by an interception agency of Queensland—any submissions made by the Queensland PIM under section 45 to the Judge or nominated ART member.
Warrant for Part 5.3 supervisory order
(2A) If a Part 5.3 warrant agency applies to an eligible Judge or nominated ART member for a warrant in respect of a person and the Judge or nominated ART member is satisfied, on the basis of the information given to the Judge or nominated ART member under this Part in connection with the application, that:
(a) Division 3 has been complied with in relation to the application; and
(b) in the case of a telephone application—because of urgent circumstances, it was necessary to make the application by telephone; and
(c) there are reasonable grounds for suspecting that a particular person is using, or is likely to use, more than one telecommunications service; and
(d) a Part 5.3 supervisory order is in force in relation to the person; and
(e) information that would be likely to be obtained by intercepting under a warrant:
(i) communications made to or from any telecommunications service that the person is using, or is likely to use; or
(ii) communications made by means of a particular telecommunications device or particular telecommunications devices that the person is using, or is likely to use;
would be likely to substantially assist in connection with:
(iii) achieving a Part 5.3 object; or
(iv) determining whether the Part 5.3 supervisory order, or any succeeding Part 5.3 supervisory order, has been, or is being, complied with; and
(f) having regard to the matters referred to in subsection (2B), and to no other matters, the Judge or nominated ART member should issue a warrant authorising such communications to be intercepted;
the Judge or nominated ART member may, in his or her discretion, issue such a warrant.
Note 1: Subsection (3) restricts the issuing of a warrant authorising interception of communications made by means of a telecommunications device or telecommunications devices identified in the warrant.
Note 2: For Part 5.3 supervisory orders that have been made but not come into force, see section 6T.
(2B) For the purposes of subsection (2A), the matters to which the Judge or nominated ART member must have regard are:
(a) how much the privacy of any person or persons would be likely to be interfered with by intercepting under a warrant:
(i) communications made to or from any telecommunications service used, or likely to be used, by the person in respect of whom the warrant is sought; or
(ii) communications made by means of a particular telecommunications device or particular telecommunications devices used, or likely to be used, by the person in respect of whom the warrant is sought;
as the case requires; and
(b) how much the information referred to in paragraph (2A)(e) would be likely to assist in connection with:
(i) achieving a Part 5.3 object; or
(ii) determining whether the Part 5.3 supervisory order, or any succeeding Part 5.3 supervisory order, has been, or is being, complied with; and
(c) to what extent methods (including the use of a warrant issued under section 46) for:
(i) achieving a Part 5.3 object; or
(ii) determining whether the Part 5.3 supervisory order, or any succeeding Part 5.3 supervisory order, has been, or is being, complied with;
that do not involve the use of a warrant issued under this section in relation to the person have been used by, or are available to, the agency; and
(d) how much the use of such methods would be likely to assist in connection with:
(i) achieving a Part 5.3 object; or
(ii) determining whether the Part 5.3 supervisory order, or any succeeding Part 5.3 supervisory order, has been, or is being, complied with; and
(e) how much the use of such methods would be likely to prejudice:
(i) achieving a Part 5.3 object; or
(ii) determining whether the Part 5.3 supervisory order, or any succeeding Part 5.3 supervisory order, has been, or is being, complied with;
whether because of delay or for any other reason; and
(f) whether intercepting under a warrant communications referred to in paragraph (a) of this subsection would be the method that is likely to have the least interference with any person’s privacy; and
(g) in relation to a Part 5.3 supervisory order that is a control order—the possibility that the person in relation to whom the order is in force:
(i) has engaged, is engaging, or will engage, in a terrorist act; or
(ii) has provided, is providing, or will provide, support for a terrorist act; or
(iii) has facilitated, is facilitating, or will facilitate, a terrorist act; or
(iv) has provided, is providing, or will provide, support for the engagement in a hostile activity in a foreign country; or
(v) has facilitated, is facilitating, or will facilitate, the engagement in a hostile activity in a foreign country; and
(ga) in relation to a Part 5.3 supervisory order that is an extended supervision order or interim supervision order—the possibility that the person in relation to whom the order is in force has committed, is committing, or will commit a serious Part 5.3 offence; and
(gb) in relation to any Part 5.3 supervisory order—the possibility that the person in relation to whom the order is in force:
(i) has contravened, is contravening, or will contravene, the Part 5.3 supervisory order; or
(ii) will contravene a succeeding Part 5.3 supervisory order; and
(h) in relation to an application by an interception agency of Victoria—any submissions made by the Victorian PIM under section 44A to the Judge or nominated ART member; and
(i) in relation to an application by an interception agency of Queensland—any submissions made by the Queensland PIM under section 45 to the Judge or nominated ART member.
Warrant sought for post‑sentence order application
(2C) If a Part 5.3 warrant agency applies to an eligible Judge or nominated ART member for a warrant in respect of a person and the Judge or nominated ART member is satisfied, on the basis of the information given to the Judge or nominated ART member under this Part in connection with the application, that:
(a) Division 3 has been complied with in relation to the application; and
(b) in the case of a telephone application—because of urgent circumstances, it was necessary to make the application by telephone; and
(c) there are reasonable grounds for suspecting that a particular person is using, or is likely to use, more than one telecommunications service; and
(d) the person is a terrorist offender in relation to whom an application for a post‑sentence order could be made; and
(e) the person is detained in custody in a prison; and
(f) there are reasonable grounds to suspect that there is an appreciable risk of the person committing a serious Part 5.3 offence; and
(g) consideration is being given, will be given, or is likely to be given, by the AFP Minister (or a person on behalf of the AFP Minister), as to whether to apply for a post‑sentence order in relation to the person; and
(h) information that would be likely to be obtained by intercepting under a warrant:
(i) communications made to or from any telecommunications service that the person is using, or is likely to use; or
(ii) communications made by means of a particular telecommunications device or particular telecommunications devices that the person is using, or is likely to use;
would be likely to assist in determining whether to apply for the post‑sentence order; and
(i) having regard to the matters referred to in subsection (2D), and to no other matters, the Judge or nominated ART member should issue a warrant authorising such communications to be intercepted;
the Judge or nominated ART member may, in the Judge’s or member’s discretion, issue such a warrant.
(2D) For the purposes of subsection (2C), the matters to which the Judge or nominated ART member must have regard are:
(a) how much the privacy of any person or persons would be likely to be interfered with by intercepting under a warrant:
(i) communications made to or from any telecommunications service used, or likely to be used, by the person in respect of whom the warrant is sought; or
(ii) communications made by means of a particular telecommunications device or particular telecommunications devices used, or likely to be used, by the person in respect of whom the warrant is sought; and
(b) how much the information referred to in paragraph (2C)(h) would be likely to assist in connection with determining whether to apply for the post‑sentence order; and
(c) to what extent methods (including the use of a warrant issued under section 46) for determining whether to apply for a post‑sentence order that do not involve so intercepting communications have been used by, or are available to, the AFP Minister (or a legal representative of the AFP Minister); and
(d) how much the use of such methods would be likely to assist in determining whether to apply for the post‑sentence order; and
(e) how much the use of such methods would be likely to prejudice determining whether to apply for the post‑sentence order, whether because of delay or for any other reasons; and
(f) in relation to an application by an interception agency of Victoria—any submissions made by the Victorian PIM under section 44A to the Judge or nominated ART member; and
(g) in relation to an application by an interception agency of Queensland—any submissions made by the Queensland PIM under section 45 to the Judge or nominated ART member.
Warrant for community safety supervision order
(2E) If a Part 9.10 warrant agency applies to an eligible Judge or nominated ART member for a warrant in respect of a person and the Judge or nominated ART member is satisfied, on the basis of the information given to the Judge or nominated ART member under this Part in connection with the application, that:
(a) Division 3 has been complied with in relation to the application; and
(b) in the case of a telephone application—because of urgent circumstances, it was necessary to make the application by telephone; and
(c) there are reasonable grounds for suspecting that a particular person is using, or is likely to use, more than one telecommunications service; and
(d) a community safety supervision order is in force in relation to the person; and
(e) information that would be likely to be obtained by intercepting under a warrant:
(i) communications made to or from any telecommunications service that the person is using, or is likely to use; or
(ii) communications made by means of a particular telecommunications device or particular telecommunications devices that the person is using, or is likely to use;
would be likely to substantially assist in connection with:
(iii) achieving a Part 9.10 object; or
(iv) determining whether the community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with; and
(f) having regard to the matters referred to in subsection (2F), and to no other matters, the Judge or nominated ART member should issue a warrant authorising such communications to be intercepted;
the Judge or nominated ART member may, in the Judge or member’s discretion, issue such a warrant.
Note 1: Subsection (3) restricts the issuing of a warrant authorising interception of communications made by means of a telecommunications device or telecommunications devices identified in the warrant.
Note 2: For community safety supervision orders that have been made but not come into force, see section 6UA.
(2F) For the purposes of subsection (2E), the matters to which the Judge or nominated ART member must have regard are:
(a) how much the privacy of any person or persons would be likely to be interfered with by intercepting under a warrant:
(i) communications made to or from any telecommunications service used, or likely to be used, by the person in respect of whom the warrant is sought; or
(ii) communications made by means of a particular telecommunications device or particular telecommunications devices used, or likely to be used, by the person in respect of whom the warrant is sought;
as the case requires; and
(b) how much the information referred to in paragraph (2E)(e) would be likely to assist in connection with:
(i) achieving a Part 9.10 object; or
(ii) determining whether the community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with; and
(c) to what extent methods (including the use of a warrant issued under section 46) for:
(i) achieving a Part 9.10 object; or
(ii) determining whether the community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with;
that do not involve the use of a warrant issued under this section in relation to the person have been used by, or are available to, the agency; and
(d) how much the use of such methods would be likely to assist in connection with:
(i) achieving a Part 9.10 object; or
(ii) determining whether the community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with; and
(e) how much the use of such methods would be likely to prejudice:
(i) achieving a Part 9.10 object; or
(ii) determining whether the community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with;
whether because of delay or for any other reason; and
(f) whether intercepting under a warrant communications referred to in paragraph (a) of this subsection would be the method that is likely to have the least interference with any person’s privacy; and
(g) the possibility that the person in relation to whom the order is in force has committed, is committing, or will commit a serious violent or sexual offence; and
(h) the possibility that the person in relation to whom the order is in force:
(i) has contravened, is contravening, or will contravene, the community safety supervision order; or
(ii) will contravene a succeeding community safety supervision order; and
(i) in relation to an application by an interception agency of Victoria—any submissions made by the Victorian PIM under section 44A to the Judge or nominated ART member; and
(j) in relation to an application by an interception agency of Queensland—any submissions made by the Queensland PIM under section 45 to the Judge or nominated ART member.
Warrant sought for Part 9.10 order application
(2G) If a Part 9.10 warrant agency applies to an eligible Judge or nominated ART member for a warrant in respect of a person and the Judge or nominated ART member is satisfied, on the basis of the information given to the Judge or nominated ART member under this Part in connection with the application, that:
(a) Division 3 has been complied with in relation to the application; and
(b) in the case of a telephone application—because of urgent circumstances, it was necessary to make the application by telephone; and
(c) there are reasonable grounds for suspecting that a particular person is using, or is likely to use, more than one telecommunications service; and
(d) the person is a serious offender in relation to whom an application for a Part 9.10 order could be made; and
(e) there are reasonable grounds to suspect that there is an appreciable risk of the person committing a serious violent or sexual offence; and
(f) consideration is being given, will be given, or is likely to be given, by the Immigration Minister (or a person on behalf of the Immigration Minister), as to whether to apply for a Part 9.10 order in relation to the person; and
(g) information that would be likely to be obtained by intercepting under a warrant:
(i) communications made to or from any telecommunications service that the person is using, or is likely to use; or
(ii) communications made by means of a particular telecommunications device or particular telecommunications devices that the person is using, or is likely to use;
would be likely to assist in determining whether to apply for the Part 9.10 order; and
(h) having regard to the matters referred to in subsection (2H), and to no other matters, the Judge or nominated ART member should issue a warrant authorising such communications to be intercepted;
the Judge or nominated ART member may, in the Judge’s or member’s discretion, issue such a warrant.
(2H) For the purposes of subsection (2G), the matters to which the Judge or nominated ART member must have regard are:
(a) how much the privacy of any person or persons would be likely to be interfered with by intercepting under a warrant:
(i) communications made to or from any telecommunications service used, or likely to be used, by the person in respect of whom the warrant is sought; or
(ii) communications made by means of a particular telecommunications device or particular telecommunications devices used, or likely to be used, by the person in respect of whom the warrant is sought; and
(b) how much the information referred to in paragraph (2G)(g) would be likely to assist in connection with determining whether to apply for the Part 9.10 order; and
(c) to what extent methods (including the use of a warrant issued under section 46) for determining whether to apply for a Part 9.10 order that do not involve so intercepting communications have been used by, or are available to, the Immigration Minister (or a legal representative of the Immigration Minister); and
(d) how much the use of such methods would be likely to assist in determining whether to apply for the Part 9.10 order; and
(e) how much the use of such methods would be likely to prejudice determining whether to apply for the Part 9.10 order, whether because of delay or for any other reasons; and
(f) in relation to an application by an interception agency of Victoria—any submissions made by the Victorian PIM under section 44A to the Judge or nominated ART member; and
(g) in relation to an application by an interception agency of Queensland—any submissions made by the Queensland PIM under section 45 to the Judge or nominated ART member.
Restriction on issue of warrant—interception of communications made by means of one or more telecommunications devices
(3) The Judge or nominated ART member must not issue a warrant that authorises interception of communications made by means of a telecommunications device or telecommunications devices identified in the warrant unless he or she is satisfied that:
(a) there are no other practicable methods available to the agency at the time of making the application to identify the telecommunications services used, or likely to be used, by the person in respect of whom the warrant would be issued; or
(b) interception of communications made to or from a telecommunications service used, or likely to be used, by that person would not otherwise be practicable.
47 Limit on authority conferred by warrant
A warrant issued under section 46 or 46A does not authorise the interception of communications passing over a telecommunications system that a carrier operates unless:
(a) notification of the issue of the warrant has been received by an authorised representative of the carrier under subsection 60(1); and
(b) the interception takes place as a result of action taken by an employee of the carrier.
48 Issue of warrant for entry on premises
(1) If an agency could apply for a warrant under section 46 (authorising interceptions of communications to or from a service), it may instead apply for a warrant under this section that also authorises entry on premises. The agency does so by including in the application that would otherwise have been made under section 46 a request that the warrant also authorise entry on specified premises.
Note 1 Only a Part 5.3 warrant agency may apply for a warrant under section 46 in the circumstances mentioned in subsection 46(4) or (7).
Note 2: Only a Part 9.10 warrant agency may apply for a warrant under section 46 in the circumstances mentioned in subsection 46(9) or (12).
(2) Where a written application for a warrant includes a request that the warrant authorise entry on specified premises, an affidavit accompanying the application shall:
(a) state why it is considered necessary for the warrant to authorise entry on those premises;
(b) set out the number of previous applications (if any) for warrants that the agency has made and that requested authorisation of entry on those premises; and
(c) set out the number of warrants (if any) previously issued on such application.
(3) Where:
(a) an agency applies under this section to an eligible Judge or nominated ART member for a warrant in respect of a telecommunications service; and
(b) the Judge or nominated ART member is satisfied that subsection (2) has been complied with in relation to the application; and
(c) section 46 would empower the Judge or nominated ART member to issue a warrant if the application had been made under either of those sections; and
(ca) Division 3 has been complied with in relation to the application; and
(d) the Judge or nominated ART member is satisfied, on the basis of the information given to the Judge or nominated ART member under this Part in connection with the application, that:
(i) for technical reasons connected with the nature or operation of the service or of a telecommunications system of which the service forms a part; or
(ii) where, if the warrant were issued under section 46, communications to or from the telecommunications service would be intercepted while passing over a telecommunications system operated by a carrier—execution of the warrant as a result of action taken by employees of that carrier might jeopardise security of the investigation by the agency of a serious offence in which a person to whom the application relates is involved or, in the case of a warrant issued in the circumstances mentioned in subsection 46(4) or (9), might jeopardise the achievement of an objective for which the warrant was issued;
it would be impracticable or inappropriate to intercept communications under a warrant in respect of the service otherwise than by the use of equipment or a line installed on those premises;
subsections (4) and (5) apply.
(4) The Judge or nominated ART member may issue a warrant under this section authorising:
(a) entry on those premises in order to install, maintain, use or recover equipment or a line used in the interception of communications being made to or from the service; and
(b) interceptions of such communications by the use of that equipment or line.
(5) If the Judge or nominated ART member issues such a warrant:
(a) the warrant shall state whether entry is authorised to be made at any time of the day or night or only during specified hours; and
(b) the warrant may provide that entry may be made without permission first being sought or demand first being made, and authorise measures that the Judge or nominated ART member is satisfied are necessary and reasonable for that purpose.
49 Form and content of warrant
(1) A warrant shall be in accordance with the prescribed form and shall be signed by the Judge or nominated ART member who issues it.
(2) A warrant may specify conditions or restrictions relating to interceptions under the warrant.
(2A) Without limiting subsection (2), a named person warrant may state that the warrant does not authorise the interception of communications made to or from a specified telecommunications service.
Period of warrant
(3) A warrant shall specify, as the period for which it is to be in force, a period of:
(a) if subparagraph 46(1)(d)(ii), 46(4)(d)(ii) or 46(9)(d)(ii) applies—up to 45 days; or
(b) otherwise—up to 90 days.
(4) A Judge or nominated ART member shall not vary a warrant by extending the period for which it is to be in force.
(5) Neither of subsections (3) and (4) prevents the issue of a further warrant in respect of a service, or a person, in respect of which a warrant has, or warrants have, previously been issued.
(6) In subsection (5), warrant means a warrant issued under this Act.
(6A) To avoid doubt, a warrant issued on the basis that a Part 5.3 supervisory order is in force remains in force for the period mentioned in subsection (3) even if the order ceases to be in force, provided that the order is replaced by a succeeding Part 5.3 supervisory order.
Note 1: If there is no succeeding Part 5.3 supervisory order, the warrant must be revoked (see section 57).
Note 2: A control order is not a succeeding Part 5.3 supervisory order in relation to an extended supervision order, and vice versa (see section 6U).
(6B) To avoid doubt, a warrant issued on the basis that a community safety supervision order is in force remains in force for the period mentioned in subsection (3) even if the order ceases to be in force, provided that the order is replaced by a succeeding community safety supervision order.
Note: If there is no succeeding community safety supervision order, the warrant must be revoked (see section 57).
Particulars of serious offences
(7) A warrant issued under subsection 46(1) or 46A(1), or issued under section 48 in the circumstances mentioned in subsection 46(1), shall set out short particulars of each serious offence in relation to which the Judge or nominated ART member issuing the warrant was satisfied, on the application for the warrant, as mentioned in:
(a) in the case of a warrant under section 48—paragraph 46(1)(d); or
(b) otherwise—paragraph 46(1)(d) or 46A(1)(d), as the case requires.
Content of warrants issued for Part 5.3 supervisory orders
(8) A warrant issued for a Part 5.3 supervisory order that is in force must:
(a) state that the warrant is issued on the basis of a Part 5.3 supervisory order made in relation to a person; and
(b) specify the name of the person; and
(c) specify the date the Part 5.3 supervisory order was made; and
(d) state whether the Part 5.3 supervisory order is:
(i) an interim control order; or
(ii) a confirmed control order; or
(iii) an interim supervision order; or
(iv) an extended supervision order.
Warrants issued for post‑sentence order applications
(9) A warrant issued to determine whether to make an application for a post‑sentence order in relation to a person must:
(a) state that the warrant is issued on that basis; and
(b) specify the name of the person.
Content of warrants issued for community safety supervision orders
(10) A warrant issued for a community safety supervision order that is in force must:
(a) state that the warrant is issued on the basis of a community safety supervision order made in relation to a person; and
(b) specify the name of the person; and
(c) specify the date the community safety supervision order was made.
Warrants issued for Part 9.10 order applications
(11) A warrant issued to determine whether to make an application for a Part 9.10 order in relation to a person must:
(a) state that the warrant is issued on that basis; and
(b) specify the name of the person.
50 Issue of warrant on telephone application
(1) As soon as practicable after completing and signing a warrant issued on a telephone application, a Judge or nominated ART member shall:
(b) inform the person who made the application on the agency’s behalf of:
(i) the terms of the warrant; and
(ii) the day on which, and the time at which, the warrant was signed; and
(c) give the warrant to that person.
(2) A Judge or nominated ART member who issues a warrant on a telephone application shall keep a copy of the warrant.
51 Action by agency after warrant issued on telephone application
(1) A person (in this section called the applicant) who makes a telephone application on an agency’s behalf shall comply with this section within one day after the day on which a warrant is issued on the application.
(2) The applicant shall cause each person who gave information to the Judge or nominated ART member in connection with the application to swear an affidavit setting out the information so given by the person.
(3) The applicant shall give to the Judge or nominated ART member:
(a) the affidavit or affidavits; and
(b) unless the applicant is the chief officer of the agency—a copy of an authorisation by the chief officer under subsection 40(3) that was in force in relation to the applicant when the application was made.
52 Judge or nominated ART member may revoke warrant where section 51 contravened
(1) Where a Judge or nominated ART member who issued a warrant on a telephone application is satisfied that section 51 has not been complied with in relation to the warrant, he or she may, by writing signed by him or her, revoke the warrant and shall, if he or she does so:
(a) immediately inform:
(i) the person who made the application on the agency’s behalf; or
(ii) the chief officer of the agency;
of the revocation; and
(b) give the instrument of revocation to that person, or to the chief officer, as soon as practicable.
(2) Where a warrant issued to an agency is revoked under subsection (1), the chief officer of the agency must, as soon as practicable, give a copy of the instrument of revocation to the Secretary of the Department.
(3) If:
(a) a warrant has been issued to an agency; and
(b) another agency or the Organisation is exercising authority under that warrant (see section 55); and
(c) the warrant is revoked under subsection (1);
the chief officer of the agency to which the warrant was issued must:
(d) immediately inform the chief officer of the other agency or the Director‑General of Security (as the case requires) of the revocation; and
(e) give a copy of the instrument of revocation to the person referred to in paragraph (d) as soon as practicable.
54 Entry into force of warrants
A warrant comes into force when it is issued.
55 Exercise of authority conferred by warrant
(1) The authority conferred by a Part 2‑5 warrant may only be exercised by a person in relation to whom an approval under subsection (3) is in force in relation to the warrant.
(3) The chief officer of an agency, or an officer of an agency in relation to whom an appointment under subsection (4) is in force, may approve any of the following persons to exercise the authority conferred by warrants (or classes of warrants) issued to the agency:
(a) officers (or classes of officers) of the agency or another agency;
(b) staff members (or classes of staff members) of the agency or another agency;
(c) ASIO employees (or classes of ASIO employees);
(d) persons assisting the Organisation in the performance of its functions.
(4) The chief officer of an agency may appoint in writing an officer of the agency to be an approving officer for the purposes of subsection (3).
(5) In spite of subsection (1), a designated officer, or an employee of a carrier, may provide technical assistance to a person who is exercising the authority conferred by a warrant.
(6) A reference in subsection (5) to the provision of technical assistance includes a reference to:
(a) the doing of any act involved in the interception of a communication under a warrant, to the extent that the act is incidental to the doing of an act referred to in paragraph (b); and
(b) the doing of any act in connection with:
(i) the installation of equipment for the purposes of intercepting a communication in accordance with a warrant; or
(ii) the maintenance, testing or use of such equipment; or
(iii) the removal of such equipment.
(7) The chief officer of an agency or a person who is an approving officer for an agency under subsection (4) may, in writing, declare persons to be designated officers for the purposes of subsection (5).
(8) To avoid doubt, the Organisation exercises authority under a warrant even if a person assisting the Organisation in the performance of its functions, who is not an ASIO employee, is approved to exercise that authority under paragraph (3)(d).
57 Revocation of warrant by chief officer
(1) The chief officer of an agency:
(a) may, at any time, by signed writing, revoke a warrant issued 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.
(2) If another agency or the Organisation is exercising authority under the warrant, then before revoking the warrant, the chief officer must inform the chief officer of the other agency or the Director‑General of Security (as the case requires) of the proposed revocation.
(3) After revoking the warrant, the chief officer must:
(a) if subsection (2) applies—immediately inform the chief officer of the other agency or the Director‑General of Security (as the case requires) of the revocation; and
(b) in any case—give a copy of the instrument of revocation to the Secretary of the Department as soon as practicable.
(4) The chief officer of an agency may delegate his or her power under paragraph (1)(a) to a certifying officer of the agency.
(5) This section does not apply in relation to a warrant that has ceased to be in force.
(6) For the purposes of the application of subsection (1) to a Part 5.3 supervisory order warrant issued on the ground that a Part 5.3 supervisory order was in force, that ground is taken to have ceased to exist if, and only if, neither that Part 5.3 supervisory order, nor any succeeding Part 5.3 supervisory order, is in force.
(7) For the purposes of the application of subsection (1) to a community safety supervision order warrant issued on the ground that a community safety supervision order was in force, that ground is taken to have ceased to exist if, and only if, neither that community safety supervision order, nor any succeeding community safety supervision order, is in force.
58 Discontinuance of interceptions under certain warrants
(1) The chief officer of an agency must, on the revocation or proposed revocation of a warrant issued to the agency, immediately take such steps as are necessary to ensure that interceptions of communications under the warrant are discontinued.
(2) If the chief officer of an agency or the Director‑General of Security is informed under section 57 of the revocation or proposed revocation of a warrant, he or she must immediately take such steps as are necessary to ensure that interceptions of communications under the warrant by the agency or the Organisation (as the case requires) are discontinued.
59 When revocation of certain warrants takes effect
A warrant revoked under subsection 52(1) or 57(1) does not cease to be in force until the instrument of revocation is received by or on behalf of the Secretary of the Department or the warrant expires, whichever happens sooner.
59A Notification to Secretary of the Department
(1) Where a Part 2‑5 warrant is issued to an agency, the chief officer of the agency must cause a copy of the warrant to be given to the Secretary of the Department as soon as practicable.
(2) Where:
(a) it is proposed, under a warrant issued under section 46A, to intercept communications made to or from a telecommunications service; and
(b) the warrant is not a warrant that authorises interception of communications made by means of a telecommunications device or telecommunications devices identified in the warrant; and
(c) the service was not identified in the warrant;
the chief officer must cause the Secretary of the Department to be given, as soon as practicable, a description in writing of the service sufficient to identify it.
59B Notification to Ombudsman by Commonwealth agencies in relation to Part 5.3 warrants
(1) Within 6 months after a Part 5.3 warrant is issued in response to an application by a Commonwealth agency, the chief officer of the agency must:
(a) notify the Ombudsman that the warrant has been issued; and
(b) give to the Ombudsman a copy of the warrant.
(2) As soon as practicable after an officer of a Commonwealth agency contravenes any of the following conditions, restrictions or provisions, the chief officer of the agency must notify the Ombudsman of the contravention:
(a) a condition or restriction specified in the warrant under subsection 49(2);
(b) the following provisions, to the extent that they apply to the warrant:
(i) paragraph 57(1)(b);
(ii) subsection 63(1);
(iii) subsection 63(2);
(iv) section 79;
(c) section 79AA;
(d) subsection 103B(4).
(3) A failure to comply with subsection (1) or (2) does not affect the validity of the warrant.
59C Notification to Ombudsman by Commonwealth agencies in relation to Part 9.10 warrants
(1) Within 6 months after a Part 9.10 warrant is issued in response to an application by a Commonwealth agency, the chief officer of the agency must:
(a) notify the Ombudsman that the warrant has been issued; and
(b) give to the Ombudsman a copy of the warrant.
(2) As soon as practicable after an officer of a Commonwealth agency contravenes any of the following conditions, restrictions or provisions, the chief officer of the agency must notify the Ombudsman of the contravention:
(a) a condition or restriction specified in the warrant under subsection 49(2);
(b) the following provisions, to the extent that they apply to the warrant:
(i) paragraph 57(1)(b);
(ii) subsection 63(1);
(iii) subsection 63(2);
(iv) section 79;
(c) section 79AB;
(d) subsection 103B(4).
(3) A failure to comply with subsection (1) or (2) does not affect the validity of the warrant.
60 Notification to authorised representative of carrier of issue or revocation of certain warrants
(1) Where:
(a) a warrant (other than a warrant issued under section 48) is issued to an agency; and
(b) it is proposed, under the warrant, to intercept communications to or from a telecommunications service while they are passing over a telecommunications system operated by a carrier;
a certifying officer of the agency shall cause;
(c) an authorised representative of that carrier to be informed immediately of the issue of the warrant; and
(d) a copy of the warrant, certified in writing by a certifying officer of the agency to be a true copy of the warrant, to be given as soon as practicable to that authorised representative.
(3) Where:
(a) an authorised representative of a carrier has been informed, under subsection (1), of the issue of a warrant; and
(b) the warrant is revoked;
a certifying officer of the agency to which the warrant was issued shall cause:
(c) that authorised representative to be informed immediately of the revocation; and
(d) a copy of the instrument of revocation, certified in writing by a certifying officer of the agency to be a true copy of the instrument, to be given as soon as practicable to that authorised representative.
(4) Where:
(a) an authorised representative of a carrier has been informed, under subsection (1), of the issue of a named person warrant; and
(aa) the warrant is not a warrant that authorises interception of communications made by means of a telecommunications device or telecommunications devices identified in the warrant; and
(b) it is proposed, under the warrant, to intercept communications made to or from a telecommunications service operated by a carrier; and
(c) the service was not identified in the warrant;
a certifying officer of the agency must cause that authorised representative to be given, as soon as practicable, a description in writing of the service sufficient to identify it.
(4A) Where:
(a) an authorised representative of a carrier has been informed, under subsection (1), of the issue of a named person warrant; and
(b) the warrant is a warrant that authorises interception of communications made by means of a telecommunications device or telecommunications devices identified in the warrant; and
(c) it is proposed, under the warrant, to intercept, by means of a telecommunications device, communications made to or from a telecommunications service operated by the carrier; and
(d) the device was not identified in the warrant;
a certifying officer of the agency must cause that authorised representative to be given, as soon as practicable, a description in writing of the device sufficient to identify it.
(5) Where:
(a) an authorised representative of a carrier has been informed, under subsection (1) of the issue of a named person warrant; and
(b) a certifying officer of that agency is satisfied that the interception of communications made to or from a particular service, or by means of a particular device or particular devices, is no longer required;
the certifying officer must cause:
(c) that authorised representative to be informed immediately of the fact; and
(d) confirmation in writing of the fact to be given as soon as practicable to that authorised representative.
61 Evidentiary certificates
(1) The following:
(a) the Managing Director of a carrier;
(b) the secretary of a carrier;
(c) an employee of a carrier authorised in writing for the purposes of this paragraph by the Managing Director or the secretary of the carrier;
may issue a written certificate signed by him or her setting out such facts as he or she considers relevant with respect to acts or things done by, or in relation to, employees of the carrier in order to enable a warrant to be executed.
(2) A document purporting to be a certificate issued under subsection (1) and purporting to be signed by the Managing Director or secretary, or an employee, of a carrier shall be received in evidence in an exempt proceeding without further proof and is, in an exempt proceeding, conclusive evidence of the matters stated in the document.
(4) A certifying officer of an agency may issue a written certificate signed by him or her setting out such facts as he or she considers relevant with respect to:
(a) anything done by an officer or staff member of the agency in connection with the execution of a Part 2‑5 warrant; or
(b) anything done by an officer or staff member of the agency in connection with:
(i) the communication by a person to another person of; or
(ii) the making use of; or
(iii) the making of a record of; or
(iv) the custody of a record of; or
(v) the giving in evidence of;
information obtained by the execution of such a warrant.
(4A) A certifying person may issue a written certificate signed by him or her setting out such facts as he or she considers relevant with respect to:
(a) anything done by a person referred to in paragraph 55(3)(c) or (d) in connection with the execution of a Part 2‑5 warrant; or
(b) anything done by a person referred to in paragraph 55(3)(c) or (d) in connection with:
(i) the communication by a person to another person of; or
(ii) the making use of; or
(iii) the making of a record of; or
(iv) the custody of a record of; or
(v) the giving in evidence of;
information obtained by the execution of such a warrant.
(5) A document purporting to be a certificate issued under subsection (4) or (4A) by a certifying officer of an agency, or a certifying person, and to be signed by him or her:
(a) is to be received in evidence in an exempt proceeding without further proof; and
(b) in an exempt proceeding, is prima facie evidence of the matters stated in the document.
(6) In subsections (1) and (2), a reference to the Managing Director or secretary of a carrier includes a reference to the Managing Director or secretary of a body corporate of which the carrier is a subsidiary.
(7) For the purposes of this section, the question whether a body corporate is a subsidiary of another body corporate is to be determined in the same manner as the question is determined under the Corporations Act 2001.
61A Certified copy of warrant
A document certified in writing by a certifying officer of an agency to be a true copy of a warrant shall be received in evidence in an exempt proceeding as if it were the original warrant.
Part 2‑6—Dealing with intercepted information etc.
62 Application of Part
Except so far as the contrary intention appears, this Part applies in relation to:
(a) information, whether obtained before or after the commencement of this Part;
(b) an interception, whether before or after that commencement, of a communication; and
(c) a proceeding, whether begun before or after that commencement.
63 No dealing in intercepted information or interception warrant information
(1) Subject to this Part and section 299, a person shall not, after the commencement of this Part:
(a) communicate to another person, make use of, or make a record of; or
(b) give in evidence in a proceeding;
lawfully intercepted information or information obtained by intercepting a communication in contravention of subsection 7(1).
(2) Subject to this Part and section 299, a person must not, after the commencement of this subsection:
(a) communicate interception warrant information to another person; or
(b) make use of interception warrant information; or
(c) make a record of interception warrant information; or
(d) give interception warrant information in evidence in a proceeding.
63AA Dealing in interception warrant information for the purposes of Part 2‑2, 2‑5, 2‑7 or 2‑8
A person may, for the purposes of Part 2‑2, 2‑5, 2‑7 or 2‑8:
(a) communicate interception warrant information to another person; or
(b) make use of interception warrant information; or
(c) make a record of interception warrant information; or
(d) give interception warrant information in evidence in a proceeding.
63AB Dealing in general computer access intercept information etc.
(1) A person may, for the purposes of doing a thing authorised by a general computer access warrant:
(a) communicate general computer access intercept information to another person; or
(b) make use of general computer access intercept information; or
(c) make a record of general computer access intercept information; or
(d) give general computer access intercept information in evidence in a proceeding.
(2) A person may:
(a) communicate general computer access intercept information to another person; or
(b) make use of general computer access intercept information; or
(c) make a record of general computer access intercept information;
if the information relates, or appears to relate, to the involvement, or likely involvement, of a person in one or more of the following activities:
(d) activities that present a significant risk to a person’s safety;
(e) acting for, or on behalf of, a foreign power;
(f) activities that are, or are likely to be, a threat to security;
(g) activities that pose a risk, or are likely to pose a risk, to the operational security (within the meaning of the Intelligence Services Act 2001) of ASIS (within the meaning of that Act);
(ga) activities that pose a risk, or are likely to pose a risk, to the operational security (within the ordinary meaning of that expression) of the Organisation or of AGO or ASD (within the meanings of the Intelligence Services Act 2001);
(h) activities related to the proliferation of weapons of mass destruction or the movement of goods listed from time to time in the Defence and Strategic Goods List (within the meaning of regulation 13E of the Customs (Prohibited Exports) Regulations 1958);
(i) activities related to a contravention, or an alleged contravention, by a person of a UN sanction enforcement law (within the meaning of the Charter of the United Nations Act 1945).
Communications etc. for the purposes of integrity body officials
(3) A person may:
(a) communicate information referred to in subsection (4) to a person; or
(b) make use of, or make a record of, that information;
in connection with:
(c) the performance by an Ombudsman official or IGIS official of the official’s functions or duties; or
(d) the exercise by an Ombudsman official or IGIS official of the official’s powers.
(3A) A person may, in connection with the performance of a function or duty, or the exercise of a power, of:
(a) the Inspector of the National Anti‑Corruption Commission; or
(b) a person assisting the NACC Inspector;
communicate to the Inspector or the person assisting (as the case requires), or make use of, or make a record of, general computer access intercept information.
(4) The information that may be communicated, used or recorded under subsection (3) is:
(a) general computer access intercept information; or
(b) information that was obtained by intercepting a communication passing over a telecommunications system if:
(i) the interception was purportedly for the purposes of doing a thing specified in a general computer access warrant; and
(ii) the interception was not authorised by the general computer access warrant.
(4A) The Inspector of the National Anti‑Corruption Commission or a person assisting the NACC Inspector may, in connection with:
(a) the performance of their functions or duties; or
(b) the exercise of their powers;
communicate to another person, or make use of, or make a record of, general computer access intercept information.
(5) Despite subsections 13.3(2) and (3) of the Criminal Code, in a prosecution for an offence against section 63 of this Act, an Ombudsman official does not bear an evidential burden in relation to the matters in subsection (3) of this section.
Note: An IGIS official also does not bear an evidential burden in relation to the matters in subsection (3) of this section (see section 34C of the Inspector‑General of Intelligence and Security Act 1986).
(5A) If:
(a) information was obtained by intercepting a communication passing over a telecommunications system; and
(b) the interception was purportedly for the purposes of doing a thing specified in a general computer access warrant; and
(c) the interception was not authorised by the general computer access warrant;
then:
(d) a person may, in connection with the performance of a function or duty, or the exercise of a power, of:
(i) the Inspector of the National Anti‑Corruption Commission; or
(ii) a person assisting the NACC Inspector;
communicate to the Inspector or the person assisting (as the case requires), or make use of, or make a record of, that information; and
(e) the Inspector of the National Anti‑Corruption Commission or a person assisting the NACC Inspector may, in connection with:
(i) the performance of their functions or duties; or
(ii) the exercise of their powers;
communicate to another person, or make use of, or make a record of, that information.
63AC Dealing in ASIO computer access intercept information etc.
(1) A person may, for the purposes of doing a thing authorised by an ASIO computer access warrant:
(a) communicate ASIO computer access intercept information to another person; or
(b) make use of ASIO computer access intercept information; or
(c) make a record of ASIO computer access intercept information; or
(d) give ASIO computer access intercept information in evidence in a proceeding.
(2) A person may:
(a) communicate ASIO computer access intercept information to another person; or
(b) make use of ASIO computer access intercept information; or
(c) make a record of ASIO computer access intercept information;
if the information relates, or appears to relate, to the involvement, or likely involvement, of a person in one or more of the following activities:
(d) activities that present a significant risk to a person’s safety;
(e) acting for, or on behalf of, a foreign power;
(f) activities that are, or are likely to be, a threat to security;
(g) activities that pose a risk, or are likely to pose a risk, to the operational security (within the meaning of the Intelligence Services Act 2001) of ASIS (within the meaning of that Act);
(ga) activities that pose a risk, or are likely to pose a risk, to the operational security (within the ordinary meaning of that expression) of the Organisation or of AGO or ASD (within the meanings of the Intelligence Services Act 2001);
(h) activities related to the proliferation of weapons of mass destruction or the movement of goods listed from time to time in the Defence and Strategic Goods List (within the meaning of regulation 13E of the Customs (Prohibited Exports) Regulations 1958);
(i) activities related to a contravention, or an alleged contravention, by a person of a UN sanction enforcement law (within the meaning of the Charter of the United Nations Act 1945).
(3) A person may, in connection with:
(a) the performance by an IGIS official of the IGIS official’s functions or duties; or
(b) the exercise by an IGIS official of the IGIS official’s powers;
communicate to the IGIS official, or make use of, or make a record of, ASIO computer access intercept information.
(4) An IGIS official may, in connection with:
(a) the performance by the IGIS official of the IGIS official’s functions or duties; or
(b) the exercise by the IGIS official of the IGIS official’s powers;
communicate to another person, or make use of, or make a record of, ASIO computer access intercept information.
(5) If:
(a) information was obtained by intercepting a communication passing over a telecommunications system; and
(b) the interception was purportedly for the purposes of doing a thing specified in an ASIO computer access warrant; and
(c) the interception was not authorised by the ASIO computer access warrant;
then:
(d) a person may, in connection with:
(i) the performance by an IGIS official of the IGIS official’s functions or duties; or
(ii) the exercise by an IGIS official of the IGIS official’s powers;
communicate to the IGIS official, or make use of, or make a record of, that information; and
(e) an IGIS official may, in connection with:
(i) the performance by the IGIS official of the IGIS official’s functions or duties; or
(ii) the exercise by the IGIS official of the IGIS official’s powers;
communicate to another person, or make use of, or make a record of, that information.
(6) Despite subsection 13.3(3) of the Criminal Code, in a prosecution for an offence against section 63 of this Act, an IGIS official does not bear an evidential burden in relation to the matters in subsection (4) or (5) of this section.
63AD Dealing in data disruption intercept information etc.
(1) A person may, for the purposes of doing a thing authorised by a data disruption warrant:
(a) communicate data disruption intercept information to another person; or
(b) make use of data disruption intercept information; or
(c) make a record of data disruption intercept information; or
(d) give data disruption intercept information in evidence in a proceeding.
(2) A person may:
(a) communicate data disruption intercept information to another person; or
(b) make use of data disruption intercept information; or
(c) make a record of data disruption intercept information;
if the information relates, or appears to relate, to the involvement, or likely involvement, of a person in one or more of the following activities:
(d) activities that present a significant risk to a person’s safety;
(e) acting for, or on behalf of, a foreign power (within the meaning of the Australian Security Intelligence Organisation Act 1979);
(f) activities that are, or are likely to be, a threat to security;
(g) activities that pose a risk, or are likely to pose a risk, to the operational security (within the meaning of the Intelligence Services Act 2001) of ASIS (within the meaning of that Act);
(h) activities that pose a risk, or are likely to pose a risk, to the operational security (within the ordinary meaning of that expression) of the Organisation or of AGO or ASD (within the meanings of the Intelligence Services Act 2001);
(i) activities related to the proliferation of weapons of mass destruction or the movement of goods listed from time to time in the Defence and Strategic Goods List (within the meaning of regulation 13E of the Customs (Prohibited Exports) Regulations 1958);
(j) activities related to a contravention, or an alleged contravention, by a person of a UN sanction enforcement law (within the meaning of the Charter of the United Nations Act 1945).
(3) A person may, in connection with:
(a) the performance by an Ombudsman official of the Ombudsman official’s functions or duties; or
(b) the exercise by an Ombudsman official of the Ombudsman official’s powers;
communicate to the Ombudsman official, or make use of, or make a record of, data disruption intercept information.
(4) An Ombudsman official may, in connection with:
(a) the performance by the Ombudsman official of the Ombudsman official’s functions or duties; or
(b) the exercise by the Ombudsman official of the Ombudsman official’s powers;
communicate to another person, or make use of, or make a record of, data disruption intercept information.
(5) A person may, in connection with:
(a) the performance by an IGIS official of the IGIS official’s functions or duties; or
(b) the exercise by an IGIS official of the IGIS official’s powers;
communicate to the IGIS official, or make use of, or make a record of, data disruption intercept information.
(6) An IGIS official may, in connection with:
(a) the performance by the IGIS official of the IGIS official’s functions or duties; or
(b) the exercise by the IGIS official of the IGIS official’s powers;
communicate to another person, or make use of, or make a record of, data disruption intercept information.
(7) If:
(a) information was obtained by intercepting a communication passing over a telecommunications system; and
(b) the interception was purportedly for the purposes of doing a thing specified in a data disruption warrant; and
(c) the interception was not authorised by the data disruption warrant;
then:
(d) a person may, in connection with:
(i) the performance by an Ombudsman official of the Ombudsman official’s functions or duties; or
(ii) the exercise by an Ombudsman official of the Ombudsman official’s powers;
communicate to the Ombudsman official, or make use of, or make a record of, that information; and
(e) an Ombudsman official may, in connection with:
(i) the performance by the Ombudsman official of the Ombudsman official’s functions or duties; or
(ii) the exercise by the Ombudsman official of the Ombudsman official’s powers;
communicate to another person, or make use of, or make a record of, that information; and
(f) a person may, in connection with:
(i) the performance by an IGIS official of the IGIS official’s functions or duties; or
(ii) the exercise by an IGIS official of the IGIS official’s powers;
communicate to the IGIS official, or make use of, or make a record of, that information; and
(g) an IGIS official may, in connection with:
(i) the performance by the IGIS official of the IGIS official’s functions or duties; or
(ii) the exercise by the IGIS official of the IGIS official’s powers;
communicate to another person, or make use of, or make a record of, that information.
(8) Despite subsection 13.3(3) of the Criminal Code, in a prosecution for an offence against section 63 of this Act, an Ombudsman official or an IGIS official does not bear an evidential burden in relation to the matters in subsection (4), (6) or (7) of this section.
63AE Dealing in network activity warrant intercept information etc.
(1) A person may, for the purposes of doing a thing authorised by a network activity warrant:
(a) communicate network activity warrant intercept information to another person; or
(b) make use of network activity warrant intercept information; or
(c) make a record of network activity warrant intercept information; or
(d) give network activity warrant intercept information in evidence in:
(i) a criminal proceeding for an offence against section 105 so far as the offence relates to contravening section 63; or
(ii) a proceeding that is not a criminal proceeding.
(2) A person may:
(a) communicate network activity warrant intercept information to another person; or
(b) make use of network activity warrant intercept information; or
(c) make a record of network activity warrant intercept information;
if the information relates, or appears to relate, to the involvement, or likely involvement, of a person in one or more of the following activities:
(d) activities that present a significant risk to a person’s safety;
(e) acting for, or on behalf of, a foreign power (within the meaning of the Australian Security Intelligence Organisation Act 1979);
(f) activities that are, or are likely to be, a threat to security;
(g) activities that pose a risk, or are likely to pose a risk, to the operational security (within the meaning of the Intelligence Services Act 2001) of ASIS (within the meaning of that Act);
(h) activities that pose a risk, or are likely to pose a risk, to the operational security (within the ordinary meaning of that expression) of the Organisation or of AGO or ASD (within the meanings of the Intelligence Services Act 2001);
(i) activities related to the proliferation of weapons of mass destruction or the movement of goods listed from time to time in the Defence and Strategic Goods List (within the meaning of regulation 13E of the Customs (Prohibited Exports) Regulations 1958);
(j) activities related to a contravention, or an alleged contravention, by a person of a UN sanction enforcement law (within the meaning of the Charter of the United Nations Act 1945).
(2A) Network activity warrant intercept information may be used, recorded or communicated for the purposes of the making of a decision whether or not to bring, or continue, a prosecution for a prescribed offence.
(2B) Network activity warrant intercept information may be used, recorded or communicated:
(a) for the purposes of complying with any applicable common law or statutory disclosure duty or obligation in a criminal proceeding for a prescribed offence; or
(b) if, under paragraph (a), the information is communicated to the legal representative of a defendant in a proceeding—by the legal representative for the purposes of representing the defendant in the proceeding.
(2C) Network activity warrant intercept information may be admitted into evidence in a criminal proceeding for a prescribed offence if:
(a) both of the following apply:
(i) the network activity warrant intercept information is adduced or given in evidence in the proceeding by a defendant in the proceeding;
(ii) the admission into evidence of the information is necessary for the fair trial of the defendant; or
(b) the network activity warrant intercept information is adduced or given in evidence in the proceeding by the prosecution in the proceeding in response to other network activity warrant intercept information admitted into evidence in that proceeding in the circumstances mentioned in paragraph (a).
(3) A person may, in connection with:
(a) the performance by an IGIS official of the IGIS official’s functions or duties; or
(b) the exercise by an IGIS official of the IGIS official’s powers;
communicate to the IGIS official, or make use of, or make a record of, network activity warrant intercept information.
(4) An IGIS official may, in connection with:
(a) the performance by the IGIS official of the IGIS official’s functions or duties; or
(b) the exercise by the IGIS official of the IGIS official’s powers;
communicate to another person, or make use of, or make a record of, network activity warrant intercept information.
(5) If:
(a) information was obtained by intercepting a communication passing over a telecommunications system; and
(b) the interception was purportedly for the purposes of doing a thing specified in a network activity warrant; and
(c) the interception was not authorised by the network activity warrant;
then:
(d) a person may, in connection with:
(i) the performance by an IGIS official of the IGIS official’s functions or duties; or
(ii) the exercise by an IGIS official of the IGIS official’s powers;
communicate to the IGIS official, or make use of, or make a record of, that information; and
(e) an IGIS official may, in connection with:
(i) the performance by the IGIS official of the IGIS official’s functions or duties; or
(ii) the exercise by the IGIS official of the IGIS official’s powers;
communicate to another person, or make use of, or make a record of, that information.
(6) Despite subsection 13.3(3) of the Criminal Code, in a prosecution for an offence against section 63 of this Act, an IGIS official does not bear an evidential burden in relation to the matters in subsection (4) or (5) of this section.
63A Dealing in connection with existing proceeding
(1) A person may:
(a) for a purpose connected with a proceeding begun before the commencement of this Part, or for 2 or more such purposes, and for no other purpose, communicate to another person, make use of, or make a record of; or
(b) give in evidence in such a proceeding;
information:
(c) obtained by intercepting a communication before that commencement, whether or not in contravention of subsection 7(1); or
(d) obtained, before that commencement, by virtue of a warrant issued under section 11A.
(2) Nothing in subsection (1) makes admissible in evidence in any proceedings information, obtained by virtue of a warrant that was defective, that would not have been admissible in those proceedings if that subsection had not been enacted.
(3) For the purposes of this section, a proceeding by way of a prosecution of a person on indictment for an offence shall be deemed to have begun before the commencement of this Part if a proceeding with a view to the committal of the person for trial for the offence began before that commencement.
(4) For the purposes of this section, a proceeding by way of an appeal from, or otherwise arising out of, another proceeding shall be deemed to have begun before the commencement of this Part if the other proceeding began, or by virtue of any other application or applications of this section is deemed to have begun, before that commencement.
63B Dealing in information by employees of carriers
(1) An employee of a carrier may, in the performance of his or her duties as such an employee, communicate or make use of, or cause to be communicated, information (being information that has been lawfully obtained or obtained by intercepting a communication in contravention of subsection 7(1)) relating to:
(a) the operation or maintenance of a telecommunications network operated by the carrier; or
(b) the supply of services by the carrier by means of a telecommunications network.
(2) An employee of a carrier may communicate or cause to be communicated to another carrier, or to an employee of another carrier, information (being information that has been lawfully obtained or obtained by intercepting a communication in contravention of subsection 7(1)) relating to:
(a) the operation or maintenance of a telecommunications network operated by the other carrier; or
(b) the supply of services by the other carrier by means of a telecommunications network;
if the communication of the information is for the purpose of the carrying on by the other carrier of its business relating to the supply of services by means of a telecommunications network operated by the other carrier.
(3) An employee of a carrier may, in the performance of his or her duties as such an employee, communicate or make use of, or cause to be communicated, interception warrant information if the information is reasonably necessary to enable the interception of a communication under a warrant.
(4) An employee of a carrier may communicate or cause to be communicated to another carrier, or to an employee of another carrier, interception warrant information if the information is reasonably necessary to enable the interception of a communication under a warrant.
(5) If an employee of a carrier has obtained lawfully intercepted information under a section 31A authorisation that was given in response to an application made by the head (however described) of a security authority or a person acting as that head, the employee may:
(a) communicate the information to:
(i) an employee of the security authority; or
(ii) another employee of the carrier; or
(iii) if the authorisation covers the employees of one or more other carriers—an employee of any of those other carriers; or
(b) make use of the information; or
(c) make a record of the information;
if:
(d) the employee does so for the purposes of the development or testing of technologies, or interception capabilities, to which the authorisation relates; and
(e) the communication or use of the information, or the making of the record, as the case may be, does not contravene a condition to which the authorisation is subject.
63C Dealing in information for network protection purposes etc.
(1) Subject to subsection (3), a person engaged in network protection duties in relation to a computer network may, in performing those duties, communicate or make use of, or cause to be communicated, lawfully intercepted information that was obtained by intercepting a communication under paragraph 7(2)(aaa).
(2) Subject to subsection (3), a person engaged in network protection duties in relation to a computer network may communicate, or cause to be communicated, to the following persons lawfully intercepted information that was obtained by intercepting a communication under paragraph 7(2)(aaa):
(a) a responsible person for the network;
(b) another person if the information is reasonably necessary to enable the other person to perform the other person’s network protection duties in relation to the network.
(3) A person must not communicate or make use of, or cause to be communicated, lawfully intercepted information under subsection (1) or (2) if the information was obtained by converting a communication intercepted under paragraph 7(2)(aaa) into a voice communication in the form of speech (including a communication that involves a recorded or synthetic voice).
63D Dealing in information for disciplinary purposes
(1) This section applies to a person engaged in network protection duties in relation to a computer network if:
(a) the network is operated by, or on behalf of, a Commonwealth agency, security authority or eligible authority of a State; and
(b) the duties are of a kind referred to in paragraph (b) of the definition of network protection duties in subsection 5(1).
(2) Subject to subsections (3) and (4), the person may communicate or make use of, or cause to be communicated, lawfully intercepted information that was obtained by intercepting a communication under paragraph 7(2)(aaa) if the communication or use is for the purpose of:
(a) determining whether disciplinary action should be taken in relation to a use of the network by an employee, office holder or contractor of the agency or authority; or
(b) taking disciplinary action in relation to a use of the network by such an employee, office holder or contractor in a case where the use is not an appropriate use of the network by that employee, office holder or contractor; or
(c) reviewing a decision to take such disciplinary action.
Note: See section 6AAA for when a computer network is appropriately used by such an employee, office holder or contractor.
(3) A person must not communicate or make use of, or cause to be communicated, lawfully intercepted information under subsection (2) if the information was obtained by converting a communication intercepted under paragraph 7(2)(aaa) into a voice communication in the form of speech (including a communication that involves a recorded or synthetic voice).
(4) A person must not communicate or make use of, or cause to be communicated, lawfully intercepted information for a purpose referred to in subsection (2) if the person would contravene another law of the Commonwealth, or a law of a State or Territory, in doing so.
63E Responsible person for a computer network may communicate information to an agency
A responsible person for a computer network may communicate lawfully intercepted information (other than foreign intelligence information) to an officer of an agency if:
(a) the information was communicated to the responsible person under paragraph 63C(2)(a); and
(b) the responsible person suspects, on reasonable grounds, that the information is relevant to determining whether another person has committed a prescribed offence.
64 Dealing in connection with Organisation’s functions
(1) A person may, in connection with the performance by the Organisation of its functions, or otherwise for purposes of security, communicate to another person, make use of, or make a record of the following:
(a) lawfully intercepted information other than foreign intelligence information or ASIO computer access intercept information;
(b) interception warrant information.
(2) The Director‑General of Security, an ASIO employee or ASIO affiliate, in connection with the performance by the Organisation of its functions, may communicate to another such person, make use of, or make a record of, foreign intelligence information.
(3) Subsections (1) and (2) do not apply to information:
(a) obtained by a person referred to in paragraph 55(3)(c) or (d) by intercepting a communication when exercising authority under a warrant issued to an agency; or
(b) communicated, in accordance with section 66, to a person referred to in paragraph 55(3)(c); or
(c) that is interception warrant information in relation to a warrant issued to an agency;
unless the information has been communicated to the Director‑General of Security under section 68.
(4) However, a person referred to in paragraph 55(3)(c) or (d) may communicate to another person, make use of, or make a record of information referred to in paragraph (3)(a), (b) or (c) of this section, that has not been communicated to the Director‑General of Security under section 68, for a purpose or purposes connected with the investigation to which the warrant, under which the information was obtained, relates, and for no other purpose.
64A Dealing in connection with Inspector‑General’s functions
(1) A person may, in connection with an IGIS official exercising a power, or performing a function or duty, as an IGIS official, communicate to another person, make use of, or make a record of, the following:
(a) information obtained by intercepting a communication passing over a telecommunications system (whether or not that information is lawfully intercepted information);
(b) interception warrant information.
(2) This section applies despite any other provision of this Part.
65 Dealing in information obtained by Organisation
(1) The Director‑General of Security may, personally, or by a person authorised by the Director‑General, communicate to another person, in accordance with subsection 18(3) or (4A), or subsection 19A(4) of the Australian Security Intelligence Organisation Act 1979 the following:
(a) lawfully intercepted information other than ASIO computer access intercept information;
(b) interception warrant information.
(1A) The Director‑General of Security may:
(a) personally, or by a person authorised by the Director‑General of Security; and
(b) for the purposes (if any) approved by the Attorney‑General in writing; and
(c) subject to the conditions (if any) specified by the Attorney‑General in writing;
communicate foreign intelligence information to another person (the second person), other than a person to whom the Director‑General could communicate the information under subsection (1) or 64(2).
(1B) The second person to whom the foreign intelligence information is communicated under subsection (1A), and any other person to whom that information is communicated under this subsection, may communicate it to another person, and use and make a record of it.
(2) A person to whom foreign intelligence information has been communicated under subsection (1) may, in the proper performance or exercise of the person’s functions, duties or powers:
(a) for the purposes (if any) approved, and subject to the conditions (if any) specified, by the Attorney‑General in writing:
(i) communicate that information to another person (the second person); and
(ii) use that information; and
(c) make a record of that information;
and the second person, and any other person to whom that information is communicated under this subsection may communicate it to another person, and use and make a record of it.
(3) Subsections (1), (1A), (1B) and (2) do not apply to information:
(a) obtained by a person referred to in paragraph 55(3)(c) or (d) by intercepting a communication when exercising authority under a warrant issued to an agency; or
(b) communicated, in accordance with section 66, to a person referred to in paragraph 55(3)(c); or
(c) that is interception warrant information in relation to a warrant issued to an agency;
unless the information has been communicated to the Director‑General of Security under section 68.
Note: See subsection 64(4) for when the Director‑General of Security may communicate information, referred to in paragraph (3)(a), (b) or (c) of this section, that has not been communicated under section 68.
(4) If lawfully intercepted information was obtained under a section 31A authorisation, subsection (1) of this section does not authorise the communication of the information in accordance with subsection 18(3) of the Australian Security Intelligence Organisation Act 1979 to:
(a) a staff member of an authority of the Commonwealth; or
(b) a staff member of an authority of a State;
unless the communication is for the purpose of the development or testing of technologies, or interception capabilities, of:
(c) that authority; or
(d) the Organisation.
(5) If lawfully intercepted information was obtained under a section 31A authorisation, subsection (1) of this section does not authorise the communication of the information in accordance with subsection 18(4A) of the Australian Security Intelligence Organisation Act 1979 to a staff member of ASIS, ASD or AGO unless the communication is for the purpose of the development or testing of technologies, or interception capabilities, of:
(a) ASIS, ASD or AGO, as the case requires; or
(b) the Organisation.
(6) If lawfully intercepted information was obtained under a section 31A authorisation, subsection (1) of this section does not authorise the communication of the information in accordance with subsection 19A(4) of the Australian Security Intelligence Organisation Act 1979 to a staff member of a body referred to in paragraph 19A(1)(d) or (e) of that Act unless the communication is for the purpose of the development or testing of technologies, or interception capabilities, of:
(a) that body; or
(b) the Organisation.
(6A) An approval or a condition under subsection (1A) or (2) is not a legislative instrument.
(7) For the purposes of subsections (4), (5) and (6), authority of the Commonwealth, authority of a State, ASIS, ASD, AGO and staff member have the same respective meanings as in the Australian Security Intelligence Organisation Act 1979.
65A Employee of carrier may communicate information to agency
(1) An employee of a carrier may, for a purpose or purposes set out in subsection (2), and for no other purpose, communicate to an officer of an agency:
(a) lawfully intercepted information other than foreign intelligence information or information obtained under a section 31A authorisation; or
(b) interception warrant information.
(2) The purposes are purposes connected with:
(a) the investigation by the agency of a serious offence; or
(b) any of the following:
(i) achieving a Part 5.3 object;
(ii) determining whether a Part 5.3 supervisory order has been, or is being, complied with;
(v) the performance of a function or duty, or the exercise of a power, by a person, court or other body under, or in relation to a matter arising under, Division 104 (control orders) or Division 105A (post‑sentence orders) of the Criminal Code;
(vi) a preventative detention order law;
(vii) the performance of a function or duty, or the exercise of a power, by a person, court or other body under, or in relation to a matter arising under, a post‑sentence detention law or a post‑sentence supervision law; or
(c) any of the following:
(i) achieving a Part 9.10 object;
(ii) determining whether a community safety supervision order has been, or is being, complied with;
(iii) the performance of a function or duty, or the exercise of a power, by a person, court or other body under, or in relation to a matter arising under, Division 395 of the Criminal Code (community safety orders).
66 Interceptor may communicate to officer who applied for warrant or authorised person
(1) A person who has intercepted a communication under a warrant issued to an agency may communicate information obtained by the interception to:
(a) the officer of the agency who applied for the warrant on the agency’s behalf; or
(b) a person in relation to whom an authorisation under subsection (2) is in force in relation to the warrant.
(2) The chief officer of an agency, or an authorising officer of an agency for whom an appointment under subsection (4) is in force, may authorise in writing a person (or class of person) referred to in any of paragraphs 55(3)(a) to (c) to receive information obtained by interceptions under warrants (or classes of warrants) issued to the agency.
(3) The chief officer, or an authorising officer, of an agency may make an authorisation under subsection (2) in relation to a person (or class of person) who is not an officer or staff member of that agency only for a purpose or purposes connected with an investigation to which a warrant issued to that agency relates.
(4) The chief officer of an agency may appoint in writing an officer of the agency to be an authorising officer for the purposes of this section.
67 Dealing for permitted purposes
Dealing for permitted purposes in relation to an agency
(1) An officer or staff member of an agency may, for a permitted purpose, or permitted purposes, in relation to the agency, and for no other purpose, communicate to another person, make use of, or make a record of the following:
(a) lawfully intercepted information other than foreign intelligence information, general computer access intercept information, data disruption intercept information or network activity warrant intercept information;
(b) interception warrant information.
(1A) Subsection (1) does not apply to information:
(a) obtained by an officer or staff member of an agency by intercepting a communication when exercising authority under a warrant issued to another agency; or
(b) communicated to an officer or staff member of an agency in accordance with section 66, where the information was obtained by intercepting a communication under a warrant issued to another agency; or
(c) that is interception warrant information in relation to a warrant issued to another agency;
unless the information has been communicated to an officer of the agency under section 68.
(1B) However, an officer or staff member of an agency may communicate to another person, make use of, or make a record of information mentioned in paragraph (1A)(a), (b) or (c) for a purpose or purposes set out in subsection (1C), and for no other purpose, if the information has not been communicated to an officer of the agency under section 68.
(1C) The purposes are purposes connected with:
(a) if the warrant under which the information was obtained relates to an investigation—the investigation; or
(b) if the information was obtained under a Part 5.3 warrant issued on the basis that a Part 5.3 supervisory order was in force in relation to a person—any of the following:
(i) achieving a Part 5.3 object;
(ii) determining whether the Part 5.3 supervisory order has been, or is being, complied with; or
(c) if the information was obtained under any Part 5.3 warrant—the performance of a function or duty, or the exercise of a power, by a person, court or other body under, or in relation to a matter arising under:
(i) Division 104 (control orders) or Division 105A (post‑sentence orders) of the Criminal Code; or
(ii) a post‑sentence detention order or a post‑sentence supervision order; or
(iii) a preventative detention order law; or
(d) if the information was obtained under a Part 9.10 warrant issued on the basis that a community safety supervision order was in force in relation to a person—any of the following:
(i) achieving a Part 9.10 object;
(ii) determining whether the community safety supervision order has been, or is being, complied with; or
(e) if the information was obtained under any Part 9.10 warrant—the performance of a function or duty, or the exercise of a power, by a person, court or other body under, or in relation to a matter arising under:
(i) Division 395 of the Criminal Code (community safety orders); or
(ii) a Part 9.10 order.
Dealing for permitted purposes in relation to an eligible Commonwealth authority
(2) An officer of an eligible Commonwealth authority may, for a permitted purpose, or permitted purposes, in relation to the authority, and for no other purpose, communicate to another person, make use of, or make a record of the following:
(a) lawfully intercepted information other than foreign intelligence information;
(b) interception warrant information.
Dealing for permitted purposes in relation to ASIC
(3) A member of ASIC or a staff member of ASIC may, for a permitted purpose, or permitted purposes, in relation to ASIC, and for no other purpose, communicate to another person, make use of, or make a record of the following:
(a) lawfully intercepted information other than foreign intelligence information;
(b) interception warrant information.
Dealing for permitted purposes in relation to NACC Inspector
(3A) The Inspector of the National Anti‑Corruption Commission or a person assisting the NACC Inspector may, for a permitted purpose, or permitted purposes, in relation to the performance of a function or duty, or the exercise of a power, of the Inspector or the person assisting, and for no other purpose, communicate to another person, make use of, or make a record of the following:
(a) lawfully intercepted information other than foreign intelligence information;
(b) interception warrant information.
68 Chief officer may communicate information obtained by agency
The chief officer of an agency (in this section called the originating agency) may, personally, or by an officer of the originating agency authorised by the chief officer, communicate lawfully intercepted information (other than general computer access intercept information, data disruption intercept information or network activity warrant intercept information) that was originally obtained by the originating agency or interception warrant information:
(a) if the information relates, or appears to relate, to activities prejudicial to security—to the Director‑General of Security; and
(b) if the information relates, or appears to relate, to the commission of a relevant offence in relation to another agency:
(i) if the other agency is the Australian Federal Police or the Police Force of a State—to a member of the Australian Federal Police or an officer of that Police Force, as the case may be; or
(ii) in any other case—to the chief officer of the other agency; and
(c) if the information relates, or appears to relate, to:
(i) the subject matter of a proceeding under a law of the Commonwealth for the confiscation or forfeiture of property, or for the imposition of a pecuniary penalty, in connection with the commission of a prescribed offence; or
(ia) the subject matter of a proceeding under, or in relation to a matter arising under, the main unexplained wealth provisions; or
(ii) an act or omission by a member of the Australian Federal Police that may give rise to a proceeding against that member, or to which a proceeding against that member relates, being a police disciplinary proceeding; or
(iia) an act or omission by an AFP employee or special member of the Australian Federal Police that may give rise to a decision by the Commissioner of Police to terminate the employment of the employee or the appointment of the special member; or
(iii) misbehaviour or improper conduct of an officer of the Commonwealth;
and the originating agency is not the Australian Federal Police—to the Commissioner of Police; and
(ca) if:
(i) the information relates, or appears to relate, to an act or omission by a member of the staff of the ACC that may give rise to a decision by the Chief Executive Officer of the ACC to terminate the employment of the staff member; and
(ii) the originating agency is not the ACC;
to the Chief Executive Officer of the ACC; and
(d) if the information relates, or appears to relate, to:
(i) the subject matter of a proceeding under a law of a State for the confiscation or forfeiture of property, or for the imposition of a pecuniary penalty, in connection with the commission of a prescribed offence; or
(iaa) the subject matter of a proceeding under, or in relation to a matter arising under, the unexplained wealth legislation of a participating State, the Australian Capital Territory or the Northern Territory; or
(ia) the subject matter of a proceeding under, or in relation to a matter arising under, an organised crime control law of a State; or
(ii) an act or omission by an officer of the Police Force of a State that may give rise to a proceeding against that officer, or to which a proceeding against that officer relates, being a police disciplinary proceeding; or
(iia) an act or omission by an officer or member of staff of the Police Force of a State that may give rise to a decision by the Commissioner of that Police Force to terminate the appointment of the officer or member of staff; or
(iii) misbehaviour or improper conduct of an officer of a State;
and the originating agency is not the Police Force of that State—to the Commissioner of that Police Force; and
(da) if the information relates, or appears to relate, to the commission of a relevant offence in relation to an eligible Commonwealth authority—to the chief officer of the eligible Commonwealth authority; and
(db) if the information relates, or appears to relate, to a corruption issue or a NACC corruption issue (within the meaning of the National Anti‑Corruption Commission Act 2022)—to the National Anti‑Corruption Commissioner; and
(ea) if the information relates, or appears to relate, to a matter that may give rise to an investigation by the Independent Commission Against Corruption (NSW)—to the Chief Commissioner of the Independent Commission Against Corruption (NSW); and
(eb) if the information relates, or appears to relate, to a matter referred to in paragraph (db) of the definition of permitted purpose in subsection 5(1)—to the Inspector of the Independent Commission Against Corruption (NSW); and
(ec) if the information relates, or appears to relate, to a matter that may give rise to an investigation by the IBAC (Vic.)—to the Commissioner of the IBAC (Vic.); and
(ed) if the information relates, or appears to relate, to a matter referred to in paragraph (fa) of the definition of permitted purpose in subsection 5(1)—to the Inspector of the Victorian Inspectorate; and
(f) if the information relates, or appears to relate, to a matter that may give rise to an investigation by the Law Enforcement Conduct Commission (NSW)—to the Chief Commissioner of the Law Enforcement Conduct Commission (NSW); and
(fa) if the information relates, or appears to relate, to a matter referred to in paragraph (dc) of the definition of permitted purpose in subsection 5(1)—to the Inspector of the Law Enforcement Conduct Commission (NSW); and
(h) if the information relates, or appears to relate, to a matter that may give rise to an investigation by the Crime and Corruption Commission (Qld)—to the Commissioner of the Crime and Corruption Commission (Qld); and
(j) if the information relates, or appears to relate, to a matter that may give rise to an investigation by the Corruption and Crime Commission (WA)—to the Commissioner of the Corruption and Crime Commission (WA); and
(ja) if the information relates, or appears to relate, to a matter that may give rise to an investigation by the Independent Commission Against Corruption (SA)—to the Commissioner of the Independent Commission Against Corruption (SA); and
(jb) if the information relates, or appears to relate, to a matter referred to in paragraph (ia) of the definition of permitted purpose in subsection 5(1)—to the Inspector of the Independent Commission Against Corruption (SA); and
(k) if the information relates, or appears to relate, to a matter referred to in paragraph (h) of the definition of permitted purpose in subsection 5(1)—to the Parliamentary Inspector of the Corruption and Crime Commission (WA); and
(l) if the Attorney‑General has authorised the provision of the information to a foreign country under subsection 13A(1) of the Mutual Assistance in Criminal Matters Act 1987—to that foreign country, or to the Secretary of the Department administered by that Minister for the purpose of providing the information to that foreign country; and
(la) if the Attorney‑General has authorised the provision of the information to the International Criminal Court under section 69A of the International Criminal Court Act 2002—to:
(i) that Court; or
(ii) the Secretary of the Department administered by that Minister for the purpose of providing the information to that Court; and
(lb) if the Attorney‑General has authorised the provision of the information to a War Crimes Tribunal under section 25A of the International War Crimes Tribunals Act 1995—to:
(i) that Tribunal; or
(ii) the Secretary of the Department administered by that Minister for the purpose of providing the information to that Tribunal; and
(m) to the chief officer of the Australian Federal Police or the ACC, if the information relates, or appears to relate, to either of the following:
(i) a matter in relation to which an application for an integrity authority may be made, is intended to be made or has been made in relation to that agency;
(ii) a matter in relation to which that agency has conducted, or is conducting, an integrity operation; and
(n) to the chief officer of the National Anti‑Corruption Commission, if the information relates, or appears to relate, to either of the following:
(i) a matter in relation to which an application for an integrity authority may be made, is intended to be made or has been made in relation to the Australian Federal Police, the ACC or the Immigration and Border Protection Department;
(ii) a matter in relation to which the National Anti‑Corruption Commission has conducted, or is conducting, an integrity operation; and
(o) if the originating agency is the National Anti‑Corruption Commission—to the Secretary of the Immigration and Border Protection Department, in the case of information that relates, or appears to relate, to either of the following:
(i) a matter in relation to which an application for an integrity authority may be made, is intended to be made or has been made in relation to the Immigration and Border Protection Department;
(ii) a matter in relation to which the Immigration and Border Protection Department is conducting an integrity operation; and
(p) to a member of ASIC or a staff member of ASIC, if the information relates, or appears to relate, to a matter that may give rise to an investigation by ASIC of:
(i) a serious offence; or
(ii) the likely commission of a serious offence; and
(q) to the Inspector of the National Anti‑Corruption Commission or a person assisting the NACC Inspector, if the information relates, or appears to relate, to a NACC corruption issue (within the meaning of the National Anti‑Corruption Commission Act 2022).
68A Communicating information obtained by the Secretary of the Attorney‑General’s Department
(1) This section applies to information communicated to the Secretary of the Department administered by the Attorney‑General as described in an item of the following table:
Information to which this section applies |
Item | Information communicated under this provision: | For the purpose of providing it to this entity: |
1 | paragraph 68(l) | the foreign country concerned |
2 | paragraph 68(la) | the International Criminal Court |
3 | paragraph 68(lb) | the War Crimes Tribunal concerned |
(2) Each of the following:
(a) the Secretary of that Department;
(b) a person authorised by that Secretary;
(c) a person or other entity to whom the information has been communicated under this subsection;
may communicate the information to another person or entity for purposes connected with providing the information to the entity mentioned in that table item.
69 State authority may ask not to receive information under section 68
(1) The chief officer of an eligible authority of a State in relation to which no declaration is in force under section 34 may, by writing given to the chief officer of another agency, request the other agency not to communicate information under section 68 to the eligible authority.
(2) A request under subsection (1) remains in force until:
(a) the chief officer of the eligible authority revokes the request by writing given to the chief officer of the other agency; or
(b) a declaration is made under section 34 in relation to the eligible authority.
(3) Where a request under subsection (1) is in force, section 68 does not permit an officer of the other agency to communicate information to an officer of the eligible authority.
70 Communicating information obtained by interception under Part 2‑3
A member of a police force may, in the course of performing his or her duties as such a member, communicate to another member of a police force, or to any other person whose assistance may be required in dealing with an emergency of a kind referred to in paragraph 30(1)(b), information communicated (whether before or after the commencement of this section) to the first‑mentioned member in accordance with subsection 30(3) or this section.
71 Dealing with information where interception suspected to be unlawful
(1) Where a person suspects on reasonable grounds that information (in this section called the relevant information) obtained by intercepting a communication may tend to establish that a prescribed offence (in this section called a suspected offence), being:
(a) an offence against subsection 7(1) constituted by the interception, or by authorising, suffering or permitting, or doing an act or thing to enable, the interception;
(b) an offence against section 63 constituted by communicating to a person, making use of, making a record of, or giving in evidence in a proceeding, information obtained by the interception; or
(c) an ancillary offence relating to an offence of a kind referred to in paragraph (a) or (b) of this subsection;
has been committed, the succeeding provisions of this section have effect, whether or not the interception contravened subsection 7(1).
(2) The person may communicate the relevant information to:
(a) the Attorney‑General; or
(aa) the Minister; or
(b) the Director of Public Prosecutions; or
(c) the Commissioner of Police; or
(ca) the National Anti‑Corruption Commissioner; or
(cb) the Inspector of the National Anti‑Corruption Commission; or
(d) the Chief Executive Officer of the ACC.
(3) A person to whom the relevant information is communicated in accordance with subsection (2) may, for a purpose connected with:
(a) an investigation of a suspected offence;
(b) the making by an authority, body or person of a decision whether or not to begin a proceeding by way of a prosecution for a suspected offence; or
(c) a proceeding by way of a prosecution for a suspected offence;
or for 2 or more such purposes, and for no other purpose, communicate to another person, make use of, or make a record of, some or all of the relevant information.
72 Making record for purpose of permitted communication
A person who is permitted by section 63B, 63C, 63D, 63E, 65 or 65A, subsection 66(1), section 68 or subsection 71(2) to communicate particular information to another person may, for the purpose of so communicating the information in accordance with that section or subsection, make a record of the information, or cause such a record to be made.
73 Further dealing by recipient of certain information
(1) Subject to subsections (2) and (3), a person to whom information has, in accordance with section 63A, subsection 63B(2), 63C(2) or 63D(2), section 64A or 67, subsection 71(3) or this subsection, been communicated for a purpose, or for 2 or more purposes, may, for that purpose, or for one or more of those purposes, and for no other purpose, communicate to another person, make use of, or make a record of, that information.
(2) If a person to whom information has been communicated in accordance with subsection 63D(2) communicates the information to another person (the recipient) under subsection (1) of this section, the recipient must not communicate, use, or make a record of, the information under subsection (1) of this section if the recipient would contravene another law of the Commonwealth, or a law of a State or Territory, in doing so.
(3) If the recipient communicates that information to a third person under subsection (1) of this section, the third person must not communicate, use, or make a record of, the information under that subsection if the third person would contravene another law of the Commonwealth, or a law of a State or Territory, in doing so.
74 Giving information in evidence in exempt proceeding
(1) A person may give lawfully intercepted information (other than foreign intelligence information, general computer access intercept information, data disruption intercept information, network activity warrant intercept information or ASIO computer access intercept information) in evidence in an exempt proceeding.
(2) For the purposes of applying subsection (1) in relation to information, the question whether or not a communication was intercepted in contravention of subsection 7(1) may be determined on the balance of probabilities.
(3) A person may give interception warrant information in evidence in an exempt proceeding.
75 Giving information in evidence where defect in connection with warrant
(1) Where a communication has been intercepted in contravention of subsection 7(1) but purportedly under a warrant (other than a general computer access warrant, a data disruption warrant, a network activity warrant or a warrant under section 11A, 11B or 11C), a person may give information obtained by the interception in evidence in an exempt proceeding, being a proceeding in a court or before a tribunal, body, authority or person, if the court, tribunal, body, authority or person, as the case may be, is satisfied that:
(a) but for an irregularity, the interception would not have constituted a contravention of subsection 7(1); and
(b) in all the circumstances, the irregularity should be disregarded.
(2) A reference in subsection (1) to an irregularity is a reference to a defect or irregularity (other than a substantial defect or irregularity):
(a) in, or in connection with the issue of, a document purporting to be a warrant; or
(b) in connection with the execution of a warrant, or the purported execution of a document purporting to be a warrant.
75A Evidence that has been given in exempt proceeding
If information is given in evidence (whether before or after the commencement of this section) in an exempt proceeding under section 74 or 75, that information, or any part of that information, may later be given in evidence in any proceeding.
Note: This section was inserted as a response to the decision of the Court of Appeal of New South Wales in Wood v Beves (1997) 92 A Crim R 209.
76 Giving information in evidence in criminal proceedings under this Act
(1) A person may give information obtained by intercepting a communication in contravention of subsection 7(1) in evidence in a proceeding by way of a prosecution for:
(a) an offence against subsection 7(1) constituted by the interception, or by authorising, suffering or permitting, or doing any act or thing to enable, the interception;
(b) an offence against section 63 constituted by communicating to a person, making use of, making a record of, or giving in evidence in a proceeding, information obtained by the interception; or
(c) an ancillary offence relating to an offence of a kind referred to in paragraph (a) or (b) of this subsection.
(2) A person may give interception warrant information in evidence in a proceeding by way of a prosecution for:
(a) an offence against subsection 7(1); or
(b) an offence against section 63; or
(c) an ancillary offence relating to an offence of a kind referred to in paragraph (a) or (b) of this subsection.
76A Giving information in evidence in civil proceedings for remedial relief
(1) A person may give information obtained by intercepting a communication in contravention of subsection 7(1) in evidence in a proceeding by way of an application under section 107A for remedial relief in respect of:
(a) the interception; or
(b) the communication (in contravention of section 63) of information obtained by the interception.
(2) A person may give interception warrant information in evidence in a proceeding by way of an application under section 107A.
77 Intercepted material and interception warrant information inadmissible except as provided
(1) Where a communication passing over a telecommunications system has been intercepted, whether or not in contravention of subsection 7(1), then:
(a) subject to paragraph (b), neither information, nor a record, obtained by the interception is admissible in evidence in a proceeding except in so far as section 63A, 63AB, 63AC, 63AD, 63AE, 74, 75, 75A, 76 or 76A permits a person to give in evidence in that proceeding information so obtained; and
(b) for the purpose of determining the extent (if any) to which section 63A, 63AB, 63AC, 63AD, 63AE, 74, 75, 75A, 76 or 76A permits a person to give in evidence in a proceeding information obtained by the interception:
(i) a person may communicate to another person, make use of, make a record of, or give in evidence in the last‑mentioned proceeding, information so obtained; and
(ii) information, or a record, so obtained is admissible in evidence in the last‑mentioned proceeding.
(2) Neither information, nor a record, obtained by virtue of a warrant under section 11A, 11B or 11C is admissible in evidence in a proceeding unless section 63A, 74 or 75A permits a person to give in evidence in that proceeding information obtained by virtue of the warrant.
(3) Interception warrant information is admissible in evidence in a proceeding only to the extent that section 63AA, 74, 75A, 76 or 76A permits a person to give interception warrant information in evidence in that proceeding.
(4) For the purpose of determining the extent (if any) to which section 63AA, 74, 75A, 76 or 76A permits a person to give interception warrant information in evidence in a proceeding:
(a) a person may:
(i) communicate the information to another person; or
(ii) make use of the information; or
(iii) make a record of the information; or
(iv) give the information in evidence in the proceeding; and
(b) the information is admissible in evidence in the proceeding.
78 Where evidence otherwise inadmissible
Nothing in this Part renders information, or a restricted record, admissible in evidence in a proceeding to a greater extent than it would have been admissible in evidence in that proceeding if this Part had not been enacted.
79 Destruction of restricted records that are not likely to be required for a permitted purpose
(1) Where:
(a) a restricted record (whether made before or after the commencement of this section) is in the possession of an agency (other than an eligible authority of a State in relation to which a declaration is in force under section 34); and
(b) the chief officer of the agency is satisfied that the restricted record is not likely to be required for a permitted purpose in relation to the agency;
the chief officer shall cause the restricted record to be destroyed forthwith.
(2) In spite of subsection (1), a restricted record must not be destroyed unless the agency has received from the Secretary of the Department written notice that the entry in the General Register relating to the warrant under which the record was obtained has been inspected by the Minister.
(3) This section does not apply to a restricted record that is a record of a communication that was intercepted under paragraph 7(2)(aaa).
79AA Destruction of restricted records—information obtained before a Part 5.3 supervisory order came into force
(1) If:
(a) a restricted record is in the possession of an agency; and
(b) the restricted record relates to an interception authorised by a Part 5.3 supervisory order warrant; and
(c) the warrant was issued for the purpose, or for purposes that include the purpose, of obtaining information that would be likely to assist in connection with determining whether the relevant Part 5.3 supervisory order, or any succeeding Part 5.3 supervisory order, has been, or is being, complied with; and
(d) the interception occurred when the Part 5.3 supervisory order had been made but had not come into force; and
(e) the chief officer of the agency is satisfied that none of the information obtained by the interception is likely to assist in connection with achieving a Part 5.3 object;
the chief officer of the agency must cause the restricted record to be destroyed as soon as practicable.
(2) Section 6T does not apply to subsection (1) of this section.
79AB Destruction of restricted records—information obtained before a community safety supervision order came into force
(1) If:
(a) a restricted record is in the possession of an agency; and
(b) the restricted record relates to an interception authorised by a community safety supervision order warrant; and
(c) the warrant was issued for the purpose, or for purposes that include the purpose, of obtaining information that would be likely to assist in connection with determining whether the relevant community safety supervision order, or any succeeding community safety supervision order, has been, or is being, complied with; and
(d) the interception occurred when the community safety supervision order had been made but had not come into force; and
(e) the chief officer of the agency is satisfied that none of the information obtained by the interception is likely to assist in connection with achieving a Part 9.10 object;
the chief officer of the agency must cause the restricted record to be destroyed as soon as practicable.
(2) Section 6UA does not apply to subsection (1) of this section.
79A Responsible person for a computer network must ensure restricted records are destroyed
(1) This section applies if:
(a) a restricted record is a record of a communication that was intercepted under paragraph 7(2)(aaa); and
(b) the restricted record is in the possession of:
(i) a responsible person for the computer network concerned; or
(ii) the individual or body (whether or not a body corporate) who operates the network, or on whose behalf the network is operated; or
(iii) a person engaged in network protection duties in relation to the network.
(2) The responsible person must cause the restricted record to be destroyed as soon as practicable after becoming satisfied that the restricted record is not likely to be required:
(a) for the purpose of enabling a person to perform the person’s network protection duties in relation to the network; or
(b) if the network is operated by, or on behalf of, a Commonwealth agency, security authority or eligible authority of a State—for any of the following purposes:
(i) determining whether disciplinary action should be taken in relation to a use of the network by an employee, office holder or contractor of the agency or authority;
(ii) taking disciplinary action in relation to a use of the network by such an employee, office holder or contractor in a case where the use is not an appropriate use of the network by that employee, office holder or contractor;
(iii) reviewing a decision to take such disciplinary action.
Part 2‑7—Keeping and inspection of interception records
80 Commonwealth agencies to keep documents connected with issue of warrants
The chief officer of a Commonwealth agency must cause to be kept in the agency’s records:
(a) each warrant issued to the agency; and
(b) a copy of each notification under subsection 59A(2), being a notification given to the Secretary of the Department; and
(c) each instrument revoking such a warrant; and
(d) a copy of each certificate issued under subsection 61(4) by a certifying officer of the agency; and
(e) each authorisation by the chief officer under subsection 66(2); and
(f) a copy of each advice the chief officer gives to the Minister under subsection 103B(2) or paragraph 103B(4)(b); and
(g) each notice the chief officer receives from the Minister under paragraph 103B(3)(a) or (5)(a).
81 Other records to be kept by Commonwealth agencies in connection with interceptions
(1) The chief officer of a Commonwealth agency must cause:
(a) particulars of each telephone application for a Part 2‑5 warrant made by the agency; and
(b) in relation to each application by the agency for a Part 2‑5 warrant, a statement as to whether:
(i) the application was withdrawn or refused; or
(ii) a warrant was issued on the application; and
(c) in relation to each Part 2‑5 warrant whose authority is exercised by the agency, particulars of:
(i) the warrant; and
(ii) the day on which, and the time at which, each interception under the warrant began; and
(iii) the duration of each such interception; and
(iv) the name of the person who carried out each such interception; and
(v) in relation to a named person warrant—each service to or from which communications have been intercepted under the warrant; and
(d) in relation to each restricted record (other than a restricted record that is a record of a communication that was intercepted under paragraph 7(2)(aaa)) that has at any time been in the agency’s possession, particulars of:
(i) if the restricted record is a record obtained by an interception under a warrant issued to the agency—that warrant; and
(ii) each occasion when the restricted record came (whether by its making or otherwise) to be in the agency’s possession; and
(iii) each occasion (if any) when the restricted record ceased (whether by its destruction or otherwise) to be in the agency’s possession; and
(iv) each other agency or other body (if any) from or to which, or other person (if any) from or to whom, the agency received or supplied the restricted record; and
(e) particulars of each use made by the agency of lawfully intercepted information; and
(f) particulars of each communication of lawfully intercepted information by an officer of the agency to a person or body other than such an officer; and
(g) particulars of each occasion when, to the knowledge of an officer of the agency, lawfully intercepted information was given in evidence in a relevant proceeding in relation to the agency; and
(h) particulars of each reconsideration by the chief officer under paragraph 103B(4)(a) that does not result in the chief officer giving advice under paragraph 103B(4)(b);
to be recorded in writing or by means of a computer as soon as practicable after the happening of the events to which the particulars relate or the statement relates, as the case may be.
(2) If a Part 2‑5 warrant is a named person warrant, the particulars referred to in subparagraph (1)(c)(ii) must indicate the service in respect of which each interception occurred.
(2A) If:
(a) the Organisation is exercising the authority conferred by a Part 2‑5 warrant issued to a Commonwealth agency; and
(b) the Commonwealth agency does not have the particulars referred to in subparagraph (1)(c)(ii), (iii) or (iv), or paragraph (1)(d);
the Director‑General of Security must:
(c) cause those particulars to be recorded in accordance with subsections (1) and (2); and
(d) give the records produced to the chief officer of the Commonwealth agency to which the Part 2‑5 warrant was issued.
(3) The chief officer of a Commonwealth agency must cause to be kept in the agency’s records each record that the chief officer has caused to be made, or is given, under this section.
81AA Organisation to record particulars in relation to eligible authorities of a State
If:
(a) the Organisation is exercising the authority conferred by a Part 2‑5 warrant issued to an eligible authority of a State; and
(b) the eligible authority does not have the particulars referred to in subparagraph 81(1)(c)(ii), (iii) or (iv), or paragraph 81(1)(d);
the Director‑General of Security must:
(c) cause those particulars to be recorded in accordance with subsections 81(1) and (2); and
(d) give the records produced to the chief officer of the eligible authority to which the Part 2‑5 warrant was issued.
81A General Register of Warrants
(1) The Secretary of the Department is to cause a General Register of Warrants to be kept.
(2) The Secretary of the Department is to cause to be recorded in the General Register in relation to each Part 2‑5 warrant particulars of:
(a) the date of issue of the warrant; and
(b) the Judge or nominated ART member who issued the warrant; and
(c) the agency to which the warrant was issued; and
(d) in the case of a telecommunications service warrant:
(i) the telecommunications service to which the warrant relates; and
(ii) the name of the person specified in the warrant as a person using or likely to use the telecommunications service; and
(e) in the case of a named person warrant:
(i) the name of the person to whom the warrant relates; and
(ii) each telecommunications service that is specified in the warrant, or in relation to which interceptions authorised by the warrant have occurred; and
(f) the period for which the warrant is to be in force; and
(g) in the case of a warrant issued under subsection 46(1) or 46A(1), or issued under section 48 in the circumstances mentioned in subsection 46(1)—each serious offence in relation to which the Judge or nominated ART member who issued the warrant was satisfied, on the application for the warrant, as mentioned in:
(i) in the case of a warrant under section 48—paragraph 46(1)(d); or
(ii) otherwise—paragraph 46(1)(d) or 46A(1)(d), as the case requires; and
(h) in the case of a Part 5.3 warrant—the name of the person to whom the relevant Part 5.3 supervisory order or application relates; and
(i) in the case of a Part 9.10 warrant—the name of the person to whom the relevant community safety supervision order or application relates.
81B Regular submission of General Register to Minister
(1) Within 3 months after the commencement of Schedule 5 to the Telecommunications (Interception) Amendment Act 2006, the Secretary of the Department must deliver the General Register to the Minister for inspection.
(2) Once at least within each succeeding period of 3 months, the Secretary of the Department must deliver to the Minister, for inspection by the Minister, any part of the General Register that represents information recorded since the General Register, or any part of the General Register, was last delivered to the Minister.
81C Special Register of Warrants
Special Register of Warrants
(1) The Secretary of the Department is to cause a Special Register of Warrants to be kept.
Contents of Register
(2) The Secretary of the Department is to cause to be recorded in the Special Register the following particulars in relation to each registrable expired warrant:
(a) the date of issue of the warrant;
(b) the Judge or nominated ART member who issued the warrant;
(c) the agency to which the warrant was issued;
(d) in the case of a telecommunications service warrant:
(i) the telecommunications service to which the warrant related; and
(ii) the name of the person specified in the warrant as a person using or likely to use the telecommunications service; and
(e) in the case of a named person warrant:
(i) the name of the person to whom the warrant related; and
(ii) each telecommunications service that is specified in the warrant, or in relation to which interceptions authorised by the warrant have occurred; and
(f) the period for which the warrant was in force;
(g) in the case of a warrant issued under subsection 46(1) or 46A(1), or issued under section 48 in the circumstances mentioned in subsection 46(1)—each serious offence in relation to which the Judge or nominated ART member who issued the warrant was satisfied, on the application for the warrant, as mentioned in:
(i) in the case of a warrant under section 48—paragraph 46(1)(d); or
(ii) otherwise—paragraph 46(1)(d) or 46A(1)(d), as the case requires;
(h) in the case of a Part 5.3 warrant—the name of the person to whom the relevant Part 5.3 supervisory order or application relates;
(i) in the case of a Part 9.10 warrant—the name of the person to whom the relevant community safety supervision order or application relates.
Note: Registrable expired warrant is defined by subsections (3) and (4).
Registrable expired warrant—original warrant renewed
(3) For the purposes of this section, if:
(a) a Part 2‑5 warrant has been issued; and
(b) the warrant was an original warrant; and
(c) there were one or more renewals of the warrant; and
(d) at the end of the period of 3 months after the time (the cessation time) when the last renewal of the warrant ceased to be in force, no criminal proceedings had been instituted, or were likely to be instituted, against a person on the basis of information obtained as a result of intercepting a communication under:
(i) the warrant; or
(ii) a renewal of the warrant; and
(e) the cessation time is after the commencement of this section;
the warrant, and each renewal of the warrant, becomes a registrable expired warrant at the end of that period.
Registrable expired warrant—original warrant not renewed
(4) For the purposes of this section, if:
(a) a Part 2‑5 warrant has been issued; and
(b) the warrant was an original warrant; and
(c) no renewal of the warrant was issued; and
(d) at the end of the period of 3 months after the time (the cessation time) when the warrant ceased to be in force, no criminal proceedings had been instituted, or were likely to be instituted, against a person on the basis of information obtained as a result of intercepting a communication under the warrant; and
(e) the cessation time is after the commencement of this section;
the warrant becomes a registrable expired warrant at the end of that period.
Interpretation—criminal proceedings supported by intercepted information
(5) A reference in this section to criminal proceedings that had been, or were likely to be, instituted on the basis of information obtained as a result of intercepting a communication under a warrant includes a reference to criminal proceedings that were, or were likely to be, supported by information obtained as a result of intercepting a communication under a warrant.
81D Regular submission of Special Register to Minister
Original submission
(1) Within 3 months after the commencement of Schedule 5 to the Telecommunications (Interception) Amendment Act 2006, the Secretary of the Department must deliver the Special Register to the Minister for inspection by the Minister.
Subsequent submissions
(2) Once at least within each succeeding period of 3 months, the Secretary of the Department must deliver to the Minister, for inspection by the Minister, any part of the Special Register that represents information recorded since the Special Register, or any part of the Special Register, was last delivered to the Minister.
Special Register and General Register to be delivered at the same time
(3) As far as is practicable, the Secretary of the Department is to ensure that delivery of the Special Register, or a part of the Special Register, as the case requires, takes place at the same time as the delivery of a part of the General Register under subsection 81B(2).
81E Provision of information by eligible authorities
When section applies
(1) This section applies to an eligible authority of a State if the eligible authority is an agency.
Secretary may require information
(2) The Secretary of the Department may, by written notice given to the chief officer of the eligible authority, require the chief officer to give the Secretary such information as the Secretary requires for the purposes of complying with the obligations imposed on him or her by section 81C.
Information to be given
(3) The chief officer must give the information within the period, and in the manner, specified in the notice.
83 Inspections
(1) The Ombudsman shall inspect the records of each Commonwealth agency:
(a) at least twice during the period beginning at the commencement of this Part and ending on 30 June 1988; and
(b) at least twice during each financial year beginning on or after 1 July 1988;
in order to ascertain the extent to which the agency’s officers have complied with sections 79, 79AA, 79AB, 80 and 81 since that commencement, or since the last inspection under this Part of the agency’s records, as the case requires.
(2) The Ombudsman may at any time inspect a Commonwealth agency’s records in order to ascertain the extent to which the agency’s officers have complied during any period with sections 79, 79AA, 79AB, 80 and 81.
(3) The Ombudsman may inspect a Commonwealth agency’s records in order to ascertain the extent to which officers of the agency have complied during any period with the conditions, restrictions and provisions mentioned in subsection 59B(2) (about Part 5.3 warrants) or subsection 59C(2) (about Part 9.10 warrants) if:
(a) the chief officer of the agency notifies the Ombudsman under that subsection of a contravention of any of those conditions, restrictions or provisions; and
(b) the contravention occurred in that period.
(4) If:
(a) the performance of a function, or the exercise of a power, conferred by Part 15 of the Telecommunications Act 1997 is in connection with an interception warrant; and
(b) a Commonwealth agency has records that relate to the performance of that function or the exercise of that power;
the Ombudsman may inspect those records in order to ascertain the extent to which the agency’s officers have complied with Part 15 of the Telecommunications Act 1997.
84 Reports
(1) The Ombudsman shall, as soon as practicable, and in any event within 3 months, after the end of each financial year, report to the Minister in writing, in relation to each Commonwealth agency, about the results of the inspections under subsections 83(1), (3) and (4), during that financial year, of the agency’s records.
(1A) The Ombudsman must include in each report under subsection (1) in relation to a financial year:
(a) a summary of the inspections conducted in the financial year under section 83; and
(b) particulars of any deficiencies identified that impact on the integrity of the telecommunications interception regime established by this Act; and
(c) particulars of the remedial action (if any) taken or proposed to be taken to address those deficiencies.
Note: In complying with this section, the Ombudsman remains bound by the obligations imposed by section 63 relating to disclosure of intercepted information or interception warrant information.
(2) The Ombudsman may report to the Minister in writing at any time about the results of an inspection under this Part and shall do so if so requested by the Minister.
(3) The Ombudsman shall give a copy of a report under subsection (1) or (2) to the chief officer of the agency to which the report relates.
85 Ombudsman may report on other breaches of this Act
(1) If, as a result of an inspection under this Part of the records of an 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.
(2) To avoid doubt, for the purposes of subsection (1), a contravention of a condition or restriction specified in a warrant issued under this Act is a contravention of a provision of this Act.
(3) Subsection (1) does not apply to a contravention of section 79, 79AA, 79AB, 80 or 81.
85A Annual report may cover notified breaches in relation to Part 5.3 warrants
(1) In a report under subsection 84(1) in relation to a financial year, the Ombudsman may include a report on a contravention of which the Ombudsman is notified under subsection 59B(2) (about Part 5.3 warrants), if the Ombudsman does not conduct an inspection under subsection 83(3) in relation to a period during which the contravention occurred.
Note: If the Ombudsman conducts an inspection under subsection 83(3), the relevant report under subsection 84(1):
(a) must include the matters mentioned in subsection 84(1A) in relation to the inspection; and
(b) may include other information about contraventions of this Act (see section 85).
(2) For the purposes of subsection (1), it does not matter whether the Ombudsman is notified under subsection 59B(2) before, during or after the financial year to which the report relates.
(3) Subsection (1) does not limit what the Ombudsman may include in a report under section 84 or 85.
85B Annual report may cover notified breaches in relation to Part 9.10 warrants
(1) In a report under subsection 84(1) in relation to a financial year, the Ombudsman may include a report on a contravention of which the Ombudsman is notified under subsection 59C(2) (about Part 9.10 warrants), if the Ombudsman does not conduct an inspection under subsection 83(3) in relation to a period during which the contravention occurred.
Note: If the Ombudsman conducts an inspection under subsection 83(3), the relevant report under subsection 84(1):
(a) must include the matters mentioned in subsection 84(1A) in relation to the inspection; and
(b) may include other information about contraventions of this Act (see section 85).
(2) For the purposes of subsection (1), it does not matter whether the Ombudsman is notified under subsection 59C(2) before, during or after the financial year to which the report relates.
(3) Subsection (1) does not limit what the Ombudsman may include in a report under section 84 or 85.
86 Ombudsman’s general powers
(1) For the purposes of an inspection under this Part of an agency’s records, the Ombudsman:
(a) may, after notifying the chief officer of the agency, enter at any reasonable time premises occupied by the agency; and
(b) is entitled to have full and free access at all reasonable times to all records of the agency; and
(ba) is entitled to have full and free access at all reasonable times to the General Register and the Special Register; and
(c) notwithstanding section 63 or any other law, is entitled to make copies of, and to take extracts from, records of the agency or the General Register or Special Register; and
(d) may require an officer of the agency to give the Ombudsman such information as the Ombudsman considers necessary, being information that is in the officer’s possession, or to which the officer has access, and that is relevant to the inspection.
(2) The chief officer of a Commonwealth agency shall ensure that the agency’s officers provide to the Ombudsman such assistance in connection with the performance or exercise of the Ombudsman’s functions or powers under this Part as the Ombudsman reasonably requires.
(3) The Ombudsman’s powers include doing anything incidental or conducive to the performance of any of the Ombudsman’s functions under this Part.
87 Power to obtain relevant information
(1) Where the Ombudsman has reason to believe that an officer of an agency is able to give information relevant to an inspection under this Part of the agency’s records, subsections (2) and (3) have effect.
(2) The Ombudsman may, by writing given to the officer, require the officer to give the information to the Ombudsman:
(a) by writing signed by the officer; and
(b) at a specified place and within a specified period.
(3) The Ombudsman may, by writing given to the officer, require the officer to attend:
(a) before a specified inspecting officer;
(b) at a specified place; and
(c) within a specified period or at a specified time on a specified day;
in order to answer questions relevant to the inspection.
(4) Where the Ombudsman:
(a) has reason to believe that an officer of an agency is able to give information relevant to an inspection under this Part of the agency’s records; and
(b) does not know the officer’s identity;
the Ombudsman may, by writing given to the chief officer of the agency, require the chief officer, or a person nominated by the chief officer, to attend:
(c) before a specified inspecting officer;
(d) at a specified place; and
(e) within a specified period or at a specified time on a specified day;
in order to answer questions relevant to the inspection.
(5) The place, and the period or the time and day, specified in a requirement under this section shall be reasonable having regard to the circumstances in which the requirement is made.
(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.
Penalty for an offence against this subsection: Imprisonment for 6 months.
88 Ombudsman to be given information and access notwithstanding other laws
(1) Notwithstanding any other law, a person is not excused from giving information, answering a question, or giving access to a document, as and when required by or under this Part, on the ground that giving the information, answering the question, or giving access to the document, as the case may be, would contravene a law, would be contrary to the public interest or might tend to incriminate the person or make the person liable to a penalty, but:
(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 first‑mentioned information, answering the question or giving access to the first‑mentioned document, as the case may be;
is not admissible in evidence against the person except in a proceeding by way of a prosecution for an offence against section 107.
(2) Nothing in section 63 or any other law prevents an officer of an 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 to an inspecting officer access to a record of the agency;
for the purposes of an inspection under this Part of the agency’s records.
(3) Nothing in section 63 or any other law prevents an officer of an 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 (2).
89 Dealing with information for the purposes of inspection and report
Where:
(a) information is given or communicated to an inspecting officer, as permitted by subsection 88(2) or this section, for the purposes of an inspection, or of a report on an inspection, under this Part of an agency’s records; or
(b) an inspecting officer obtains information as a result of being given access to records of an agency, as permitted by subsection 88(2), for the purposes of an inspection under this Part of the agency’s records;
the inspecting officer may, notwithstanding section 63 or any other law, communicate to another inspecting officer, make use of, or make a record of, the information for the purposes of an inspection, or of a report on an inspection, under this Part of the agency’s records.
90 Ombudsman not to be sued
Subject to the provisions applying by virtue of subsection 92(3), 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, power or authority conferred by this Part.
91 Delegation by Ombudsman
(1) The Ombudsman may, either generally or as otherwise provided by the instrument of delegation, delegate to another inspecting officer, all or any of the Ombudsman’s powers under this Part other than a power to report to the Minister and this power of delegation.
(2) A power so delegated, when exercised by the delegate, shall, for the purposes of this Part, be deemed to have been exercised by the Ombudsman.
(3) A delegation under subsection (1) does not prevent the exercise of a power by the Ombudsman.
(4) A delegate shall, 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.
92 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 Part.
(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 Part.
(3) Subject to section 88 of this Act, subsections 35(2), (3), (4) and (8) of the Ombudsman Act 1976 apply for the purposes of this Part and so apply as if:
(a) a reference in those subsections to an officer were a reference to an inspecting officer;
(b) a reference in those subsections to information did not include a reference to lawfully intercepted information;
(c) a reference in those subsections to that Act were a reference to this Part;
(d) paragraph 35(3)(b) of that Act were omitted; and
(e) section 35A of that Act had not been enacted.
92A Exchange of information between Ombudsman and State inspecting authorities
(1) In this section:
State agency means an eligible authority of a State that is an agency.
State inspecting authority, in relation to a State agency, means the authority that, under the law of the State concerned, has the function of making inspections of the kind referred to in paragraph 35(1)(h).
(2) The Ombudsman may give information that:
(a) relates to a State agency; and
(b) was obtained by the Ombudsman under this Act;
to the authority that is the State inspecting authority in relation to the agency.
(3) The Ombudsman may only give information to an authority under subsection (2) if the Ombudsman is satisfied that the giving of the information is necessary to enable the authority to perform its functions in relation to the State agency.
(4) The Ombudsman may receive from a State inspecting authority information relevant to the performance of the Ombudsman’s functions under this Act.
Part 2‑8—Reports about interceptions under Parts 2‑3 and 2‑5
Division 1—Reports to the Minister
93 Annual reports to Minister about interceptions under Part 2‑3
The Managing Director of a carrier shall, as soon as practicable after each 30 June, give to the Minister a written report about the interceptions carried out by employees of the carrier pursuant to requests made, or purporting to be made, under section 30 during the year ending on that 30 June.
94 Annual reports regarding applications and warrants under Part 2‑5
(2) The chief officer of a Commonwealth agency must give to the Minister, within 3 months after a telecommunications service warrant issued to the agency ceases to be in force, a written report containing:
(a) information about:
(i) the use made by the agency of information obtained by interceptions under the warrant; and
(ii) the communication of such information to persons other than officers of the agency; and
(iii) the number of arrests that have been, or are likely to be, made on the basis of such information; and
(b) an assessment of the usefulness of information obtained by interceptions under the warrant.
(3) The chief officer of a Commonwealth agency shall, as soon as practicable, and in any event within 3 months, after each 30 June, give to the Minister a written report that sets out such information as:
(a) Division 2 (other than section 102B) requires to be set out in the Minister’s report under that Division relating to the year ending on that 30 June; and
(b) can be derived from the agency’s records.
(3A) A report under subsection (3) must include a statement of the total expenditure (including expenditure of a capital nature) incurred by the agency concerned in connection with the execution of warrants during the year to which the report relates.
(4) Section 34C of the Acts Interpretation Act 1901 does not apply in relation to a report under subsection (3) of this section.
94A Reports regarding emergency interception action
(1) The chief officer of an agency referred to in subsection 7(8) must give to the Minister a written report concerning:
(a) an emergency interception action taken by an officer of the agency that, because of the operation of subsection 7(6A), took place without a warrant under Part 2‑5; and
(b) an emergency interception action taken by an officer of the agency in respect of which an application for a warrant was made under Part 2‑5 and refused.
(2) The chief officer of the agency must give the report within 3 months after:
(a) in the case set out in paragraph (1)(a)—the date on which the action ceased; and
(b) in the case set out in paragraph (1)(b)—the date on which the application was refused.
(3) The report must contain the following information:
(a) if an interception occurred:
(i) the date and time at which the interception began; and
(ii) the duration of the interception;
(b) if there was no interception but action had been taken to cause a communication to be intercepted—details of the action taken;
(c) the circumstances that led the officer concerned to believe that the conditions of subsection 7(4) or (5) were satisfied;
(d) in the case set out in paragraph (1)(a)—the reasons it was not practicable to apply for a warrant under Part 2‑5 in relation to the action;
(e) in the case set out in paragraph (1)(b)—the reasons the judge or nominated ART member refused the application if the reasons are known;
(f) information about the use made by the agency of information obtained by the interception;
(g) information about the communication of such information to persons other than officers of the agency;
(h) the number of arrests that have been, or are likely to be, made on the basis of such information;
(i) an assessment of the usefulness of information obtained by the interception.
(4) In this section:
emergency interception action means an interception done under subsection 7(4) or (5) or action taken under one of those subsections to cause an interception to occur.
94B Reports regarding named person warrants
(1) The chief officer of an agency to which a named person warrant has been issued must give to the Minister a written report about the action (if any) that has taken place under the warrant.
(2) The chief officer must give a report in relation to the warrant within 3 months after the warrant ceases to be in force.
(3) The report must contain the following information in relation to each interception:
(a) the service to or from which the intercepted communication was made (being a service that the person named in the warrant used, or was likely to use);
(b) the reasons it would not have been effective to intercept the communications under a telecommunications service warrant;
(c) information about the use made by the agency of information obtained by each interception;
(d) information about the communication of such information to persons other than officers of the agency;
(e) the number of arrests that have been, or are likely to be, made on the basis of such information;
(f) an assessment of the usefulness of information obtained by each interception.
95 Minister may seek further information from Commonwealth agency
(1) The Minister may by writing request the chief officer of a Commonwealth agency, or eligible Commonwealth authority, to give to the Minister in writing specified information that:
(a) the Minister needs in connection with preparing a report under Division 2; and
(b) is not contained in a report by the chief officer under subsection 94(3).
(2) To the extent that it is practicable to do so, the chief officer of a Commonwealth agency, or eligible Commonwealth authority, shall comply with a request made to the chief officer under subsection (1).
96 Annual reports by State authorities
(1) Subject to subsection (2), the chief officer of an eligible authority of a State shall, as soon as practicable, and in any event within 3 months, after each 30 June, give to the Minister a written report that:
(a) if information that section 102 or 102A requires to be set out in the Minister’s report under Division 2 relating to the year ending on that 30 June can be derived from the authority’s records—sets out that information; or
(b) in any other case—states that no such information can be so derived.
(1A) A report under subsection (1) must include a statement of the total expenditure (including expenditure of a capital nature) incurred by the eligible authority concerned in connection with the execution of warrants during the year to which the report relates.
(2) Where a Minister of a State has given to the Minister a written report that sets out the information that, but for this subsection, subsections (1) and (1A) would require to be set out in a report by the chief officer of an eligible authority of that State, the chief officer need not give to the Minister the last‑mentioned report.
97 Reports by Managing Directors about acts done in connection with certain warrants under Part 2‑5
The Managing Director of a carrier shall give to the Minister, within 3 months after a warrant under section 46 or 46A ceases to be in force, a written report about the acts or things done by or in relation to employees of the carrier:
(a) to enable, or in connection with enabling, communications to be intercepted under the warrant; and
(b) to ensure discontinuance of interceptions under the warrant;
and the days on which, and the times at which, those acts or things were done.
Division 2—Reports by the Minister
99 Annual report by Minister about warrants under Part 2‑5
The Minister shall, as soon as practicable after each 30 June, cause to be prepared a written report that relates to the year ending on that 30 June and complies with this Division.
100 Report to set out how many applications made and warrants issued
(1) The report shall set out, for each Commonwealth agency, and for each eligible authority of a State that was an agency at any time during that year:
(a) the relevant statistics about applications for Part 2‑5 warrants that the agency or authority made during that year; and
(b) the relevant statistics about telephone applications for Part 2‑5 warrants that the agency or authority made during that year; and
(c) the relevant statistics about renewal applications that the agency or authority made during that year; and
(d) the relevant statistics about applications for Part 2‑5 warrants that the agency or authority made during that year and that included requests that the warrants authorise entry on premises; and
(e) how many Part 2‑5 warrants issued on applications made by the agency or authority during that year specified conditions or restrictions relating to interceptions under the warrants; and
(ea) in relation to the applications of a kind referred to in paragraph (a), (b), (c) or (e), the relevant statistics about applications of that kind that relate to named person warrants; and
(eb) in relation to all named person warrants issued during that year on application made by each agency or authority:
(i) how many of those warrants involved the interception of a single telecommunications service; and
(ii) how many of those warrants involved the interception of between 2 and 5 telecommunications services; and
(iii) how many of those warrants involved the interception of between 6 and 10 telecommunications services; and
(iv) how many of those warrants involved the interception of more than 10 telecommunications services; and
(ec) in relation to all named person warrants issued during that year on application made by each agency or authority:
(i) the total number of telecommunications services intercepted under those of the warrants that did not authorise the interception of communications made by means of a telecommunications device or telecommunications devices identified in the warrant; and
(ii) the total number of telecommunications services intercepted under those of the warrants that did authorise the interception of communications made by means of a telecommunications device or telecommunications devices identified in the warrant; and
(iii) the total number of telecommunications devices by means of which communications were intercepted under those of the warrants that did authorise the interception of communications made by means of a telecommunications device or telecommunications devices identified in the warrant; and
(ed) in relation to applications of a kind referred to in paragraph (a), (b), (c), (d) or (e), the relevant statistics about applications of that kind that relate to warrants in relation to which subparagraph 46(1)(d)(ii) would apply if the warrants were issued; and
(f) the categories of the serious offences specified under subsection 49(7) in Part 2‑5 warrants issued on applications made by the agency or authority during that year; and
(g) in relation to each of those categories, how many serious offences in that category were so specified.
(2) The report shall set out:
(a) the relevant statistics about applications for Part 2‑5 warrants that were made during that year; and
(b) the relevant statistics about telephone applications for Part 2‑5 warrants that were made during that year; and
(c) the relevant statistics about renewal applications made during that year; and
(d) the relevant statistics about applications for Part 2‑5 warrants that were made during that year and that included requests that the warrants authorise entry on premises; and
(e) how many Part 2‑5 warrants issued on applications made during that year specified conditions or restrictions relating to interceptions under the warrants; and
(ea) in relation to the applications of a kind referred to in paragraph (a), (b), (c) or (e), the relevant statistics about applications of that kind that relate to named person warrants; and
(eb) in relation to all named person warrants issued during that year:
(i) how many of those warrants involved the interception of a single telecommunications service; and
(ii) how many of those warrants involved the interception of between 2 and 5 telecommunications services; and
(iii) how many of those warrants involved the interception of between 6 and 10 telecommunications services; and
(iv) how many of those warrants involved the interception of more than 10 telecommunications services; and
(ec) in relation to all named person warrants issued during that year:
(i) the total number of telecommunications services intercepted under those of the warrants that did not authorise the interception of communications made by means of a telecommunications device or telecommunications devices identified in the warrant; and
(ii) the total number of telecommunications services intercepted under those of the warrants that did authorise the interception of communications made by means of a telecommunications device or telecommunications devices identified in the warrant; and
(iii) the total number of telecommunications devices by means of which communications were intercepted under those of the warrants that did authorise the interception of communications made by means of a telecommunications device or telecommunications devices identified in the warrant; and
(ed) in relation to applications of a kind referred to in paragraph (a), (b), (c), (d) or (e), the relevant statistics about applications of that kind that relate to warrants in relation to which subparagraph 46(1)(d)(ii) would apply if the warrants were issued; and
(f) the categories of the serious offences specified under subsection 49(7) in Part 2‑5 warrants issued on applications made during that year; and
(g) in relation to each of those categories, how many serious offences in that category were so specified.
101 Report to contain particulars about duration of warrants
(1) The report shall set out, for each Commonwealth agency, and for each eligible authority of a State that was an agency at any time during that year:
(a) the average of the respective periods specified, in the Part 2‑5 warrants that are original warrants and were issued on applications made by the agency or authority during that year, as the periods for which the warrants were to be in force; and
(b) the average of the respective periods during which the warrants referred to in paragraph (a) were in force; and
(c) the average of the respective periods specified, in the Part 2‑5 warrants that are renewals of other warrants and were issued on applications made by the agency or authority during that year, as the periods for which the renewals were to remain in force; and
(d) the average of the respective periods during which the warrants first referred to in paragraph (c) were in force; and
(da) in relation to periods of a kind referred to in paragraph (a), (b), (c) or (d), the averages of the periods of that kind that relate to warrants in relation to which subparagraph 46(1)(d)(ii) applied; and
(e) how many 90 day final renewals, how many 150 day final renewals, and how many 180 day final renewals, being warrants issued to the agency or authority, ceased during that year to be in force.
(2) The report shall set out:
(a) the average of the respective periods specified, in Part 2‑5 warrants that are original warrants and were issued on applications made during the year, as the periods for which the warrants were to be in force; and
(b) the average of the respective periods during which the warrants referred to in paragraph (a) were in force; and
(c) the average of the respective periods specified, in the Part 2‑5 warrants that are renewals of other warrants and were issued on applications made during that year, as the periods for which the renewals were to remain in force; and
(d) the average of the respective periods during which the warrants first referred to in paragraph (c) were in force; and
(da) in relation to periods of a kind referred to in paragraph (a), (b), (c) or (d), the averages of the periods of that kind that relate to warrants in relation to which subparagraph 46(1)(d)(ii) applied; and
(e) how many 90 day final renewals, how many 150 day final renewals, and how many 180 day final renewals, ceased during that year to be in force.
(3) A reference in subsection (1) or (2) to a 90 day final renewal, to a 150 day final renewal or to a 180 day final renewal is a reference to a warrant:
(a) that is the last renewal of an original warrant; and
(b) that ceased to be in force:
(i) more than 90 days but not more than 150 days;
(ii) more than 150 days but not more than 180 days; or
(iii) more than 180 days;
as the case may be, after the day of issue of that original warrant.
102 Report to contain information about effectiveness of warrants
(1) The report shall set out, for each Commonwealth agency, for each eligible Commonwealth authority, and for each eligible authority of a State:
(a) how many arrests were made during that year:
(i) in connection with the performance by the agency or authority of its functions; and
(ii) on the basis of information that was or included lawfully intercepted information;
(b) the categories of the prescribed offences proceedings by way of prosecutions for which ended during that year, being proceedings in which, according to the records of the agency or authority, lawfully intercepted information was given in evidence; and
(c) in relation to each of those categories:
(i) the number of such offences in that category; and
(ii) the number of such offences in that category in respect of which convictions were recorded.
(2) The report shall set out:
(a) how many arrests were made during that year:
(i) in connection with the performance by Commonwealth agencies, by eligible Commonwealth authorities, and by eligible authorities of States, of their respective functions; and
(ii) on the basis of information that was or included lawfully intercepted information;
(b) the categories of the prescribed offences proceedings by way of prosecutions for which ended during that year, being proceedings in which, according to the respective records of Commonwealth agencies, of eligible Commonwealth authorities, and of eligible authorities of States, lawfully intercepted information was given in evidence; and
(c) in relation to each of those categories:
(i) the number of such offences in that category; and
(ii) the number of such offences in that category in respect of which convictions were recorded.
(3) The report is to set out, for:
(a) each Commonwealth agency; and
(b) each eligible authority of a State, where the eligible authority was an agency at any time during the year to which the report relates;
the percentage worked out using the formula:
where:
Eligible warrants means the number of warrants that satisfy the following conditions:
(a) the warrant was issued to the agency or authority, as the case requires;
(b) the warrant was in force during the year to which the report relates;
(c) a prosecution was instituted, or was likely to be instituted, on the basis of information obtained by interceptions under:
(i) the warrant; or
(ii) if the warrant was a renewal of an original warrant:
(A) the original warrant; or
(B) any other renewal of the original warrant; or
(iii) if the warrant was an original warrant—any renewal of the original warrant.
Total warrants means the number of warrants that were:
(a) issued to the agency or authority, as the case requires; and
(b) in force during the year to which the report relates.
(4) The report is to set out the percentage worked out using the formula:
where:
Eligible warrants means the number of warrants that satisfy the following conditions:
(a) the warrant was issued to:
(i) a Commonwealth agency; or
(ii) an eligible authority of a State, where the eligible authority was an agency at any time during the year to which the report relates;
(b) the warrant was in force during the year to which the report relates;
(c) a prosecution was instituted, or was likely to be instituted, on the basis of information obtained by interceptions under:
(i) the warrant; or
(ii) if the warrant was a renewal of an original warrant:
(A) the original warrant; or
(B) any other renewal of the original warrant; or
(iii) if the warrant was an original warrant—any renewal of the original warrant.
Total warrants means the number of warrants that were:
(a) issued to:
(i) Commonwealth agencies; and
(ii) eligible authorities of States, where the eligible authorities were agencies at any time during the year to which the report relates; and
(b) in force during the year to which the report relates.
(5) A reference in this section to a prosecution that was instituted, or was likely to be instituted, on the basis of information obtained by interceptions under a warrant includes a reference to a prosecution that was supported, or likely to be supported, by information obtained by interceptions under a warrant.
102A Report regarding interceptions without warrant
The report must state, for each agency referred to in subsection 7(8), the number of occasions on which an officer or staff member of the agency intercepted a communication in reliance on subsection 7(4) or (5).
102B Report regarding international requests
The report must set out the number of occasions on which lawfully intercepted information or interception warrant information was communicated to any of the following:
(a) a foreign country under paragraph 68(l) or section 68A;
(b) the International Criminal Court under paragraph 68(la) or section 68A;
(c) a War Crimes Tribunal under paragraph 68(lb) or section 68A.
103 Other information to be included in report
The report must set out:
(a) the total expenditure (including expenditure of a capital nature) incurred by agencies to which the report relates in connection with the execution of warrants during the year to which the report relates; and
(aa) for:
(i) each Commonwealth agency; and
(ii) each eligible authority of a State, where the eligible authority was an agency at any time during the year to which the report relates;
the amount worked out using the formula:
where:
Total warrant expenditure means the total expenditure (including expenditure of a capital nature) incurred by the agency or the authority, as the case requires, in connection with the execution of warrants during the year to which the report relates.
Number of warrants means the number of warrants to which the total warrant expenditure relates; and
(ab) information about the availability of judges to issue warrants under Part 2‑5 and the extent to which nominated ART members have been used for that purpose, but not including information that would identify a particular judge or ART member; and
(ac) for:
(i) each Commonwealth agency; and
(ii) each eligible authority of a State, where the eligible authority was an agency at any time during the year to which the report relates;
the number (if any) of interceptions carried out on behalf of each other such Commonwealth agency or eligible authority; and
(aca) the number (if any) of interceptions carried out by the Organisation on behalf of:
(i) each Commonwealth agency; and
(ii) each eligible authority of a State, where the eligible authority was an agency at any time during the year to which the report relates; and
(ad) for each State and for the Australian Capital Territory, the number and type of emergency service facilities located in that State or Territory that have been declared by the Minister during the year to which the report relates; and
(ae) a summary of the information:
(i) that is included by the Ombudsman in the report made under subsection 84(1); and
(ii) that relates to the year to which the Minister’s report relates; and
(b) such other information (if any) as is prescribed.
103B Deferral of inclusion of information in report
Scope
(1) This section applies to information:
(a) included in a report submitted to the Minister:
(i) under section 84 by the Ombudsman in relation to a Commonwealth agency; or
(ii) under section 94 by the chief officer of a Commonwealth agency; or
(iii) under section 96 by the chief officer of an eligible authority of a State; and
(b) that the Minister would, apart from this section, be required to include in the next Ministerial report.
Exclusion of information
(2) If the chief officer of the Commonwealth agency or eligible authority is satisfied that the information is Part 5.3 information or Part 9.10 information, the chief officer must advise the Minister in writing not to include the information in the next Ministerial report.
(3) If the Minister is satisfied, on the advice of the chief officer, that the information is Part 5.3 information or Part 9.10 information (as the case may be), the Minister must:
(a) notify the chief officer in writing; and
(b) not include the information in any Ministerial report until the Minister decides otherwise under subsection (5).
Inclusion of information in subsequent report
(4) If the information has not been included in a Ministerial report because of subsection (3), the chief officer must, before the Minister prepares the next Ministerial report:
(a) reconsider whether the information is Part 5.3 information or Part 9.10 information (as the case may be); and
(b) if the chief officer is satisfied that the information is not Part 5.3 information or Part 9.10 information (as the case may be)—advise the Minister in writing to include the information in the next Ministerial report.
(5) If the Minister is satisfied, on the advice of the chief officer, that the information is not Part 5.3 information or Part 9.10 information (as the case may be), the Minister must:
(a) notify the chief officer in writing; and
(b) include the information in the next Ministerial report.
Definitions
(6) In this section:
Ministerial report means a report the Minister prepares under this Division.
Part 5.3 information means information that, if made public, could reasonably be expected to enable a reasonable person to conclude that:
(a) a Part 5.3 warrant is likely to be, or is not likely to be, in force in relation to a telecommunications service used, or likely to be used, by a particular person; or
(b) a Part 5.3 warrant is likely to be, or is not likely to be, in force in relation to a particular person.
Part 9.10 information means information that, if made public, could reasonably be expected to enable a reasonable person to conclude that:
(a) a Part 9.10 warrant is likely to be, or is not likely to be, in force in relation to a telecommunications service used, or likely to be used, by a particular person; or
(b) a Part 9.10 warrant is likely to be, or is not likely to be, in force in relation to a particular person.
Division 3—Provisions about annual reports
104 Annual reports
(1) The Minister shall cause a copy of a report under section 93 or Division 2 to be laid before each House of the Parliament within 15 sitting days of that House after the Minister receives the report, or the report is prepared, as the case may be.
(2) A report under section 93 or Division 2 shall not be made in a manner that is likely to enable the identification of a person.
(3) For the purposes of section 34C of the Acts Interpretation Act 1901, a report that section 93 or Division 2 requires to be given or prepared as soon as practicable after 30 June in a calendar year shall be deemed to be a periodic report that this Act requires a person to furnish to the Minister and that relates to the administration of Part 2‑3, or Parts 2‑5, 2‑6 and 2‑7, as the case may be, during the year ending on that 30 June.
Part 2‑9—Offences
105 Contravention of section 7 or 63
(1) A person who contravenes subsection 7(1) or section 63 is guilty of an offence against that subsection or section.
(2) An offence against subsection 7(1) or section 63 is an indictable offence and, subject to this section, is punishable on conviction by imprisonment for a period not exceeding 2 years.
(3) Notwithstanding that an offence against subsection 7(1) or section 63 is an indictable offence, a court of summary jurisdiction may hear and determine proceedings in respect of such an offence if, and only if:
(a) the proceedings are brought in the name of the Attorney‑General or the Director of Public Prosecutions;
(b) the defendant and the prosecutor consent; and
(c) the court is satisfied that it is proper for the court to hear and determine proceedings in respect of the offence.
(4) Where, in accordance with subsection (3), a court of summary jurisdiction convicts a person of an offence against subsection 7(1) or section 63, the penalty that the court may impose is imprisonment for a period not exceeding 6 months.
(5) Section 15.1 (extended geographical jurisdiction—category A) of the Criminal Code applies to an offence against subsection 7(1) or section 63.
106 Obstruction
(1) A person shall not obstruct or hinder a person acting under a warrant.
Penalty: Imprisonment for 6 months.
(2) Subsection (1) does not apply if the person obstructing or hindering has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).
107 Offences relating to inspections under Part 2‑7
(1) A person shall not refuse or fail:
(a) to attend before a person;
(b) to furnish information; or
(c) to answer a question;
when required under section 87 to do so.
Penalty: Imprisonment for 6 months.
(2) A person shall not:
(a) intentionally obstruct, hinder or resist a person in connection with the performance or exercise of the Ombudsman’s functions or powers under Part 2‑7; or
(b) give to an inspecting officer, in connection with an inspection under Part 2‑7, information or a statement that the first‑mentioned person knows to be false or misleading in a material particular.
Penalty: Imprisonment for 6 months.
(3) Subsection (1) and paragraph (2)(a) do not apply if the person first mentioned in subsection (1) or (2) has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).
Part 2‑10—Civil remedies
107A Civil remedies—unlawful interception or communication
When section applies
(1) This section applies to an interception of a communication passing over a telecommunications system if the interception was in contravention of subsection 7(1).
Aggrieved person
(2) For the purposes of this section, a person is an aggrieved person if, and only if:
(a) the person was a party to the communication; or
(b) the communication was made on the person’s behalf.
Interception—civil court remedy
(3) If a person (in this subsection called the defendant):
(a) so intercepted the communication; or
(b) did an act or thing referred to in paragraph 7(1)(b) or (c) in relation to the interception;
the Federal Court of Australia or a court of a State or Territory may, on the application of an aggrieved person, grant the aggrieved person remedial relief in respect of the interception by making such orders against the defendant as the court considers appropriate.
Note: Paragraphs 7(1)(b) and (c) deal with the authorisation or enabling of interception etc.
Communication—civil court remedy
(4) If:
(a) information was obtained by intercepting the communication; and
(b) a person (in this subsection called the defendant) communicated the information to another person in contravention of section 63;
the Federal Court of Australia or a court of a State or Territory may, on the application of an aggrieved person, grant the aggrieved person remedial relief in respect of the communication of the information by making such orders against the defendant as the court considers appropriate.
Interception—criminal court remedy
(5) If a court convicts a person (in this subsection called the defendant) of an offence against subsection 7(1) constituted by:
(a) the interception; or
(b) the doing of an act or thing referred to in paragraph 7(1)(b) or (c) in relation to the interception;
the court may, on the application of an aggrieved person, grant the aggrieved person remedial relief in respect of the interception by making such orders against the defendant as the court considers appropriate.
Note: Paragraphs 7(1)(b) and (c) deal with the authorisation or enabling of interception etc.
Communication—criminal court remedy
(6) If:
(a) information was obtained by intercepting the communication; and
(b) the information was communicated to a person in contravention of section 63; and
(c) a court convicts a person (in this subsection called the defendant) of an offence against section 63 constituted by the communication of the information;
the court may, on the application of an aggrieved person, grant the aggrieved person remedial relief in respect of the communication of the information by making such orders against the defendant as the court considers appropriate.
Orders
(7) Without limiting the orders that may be made under this section against a person (in this subsection called the defendant) in respect of a particular interception or a particular communication of information, a court may make an order of one or more of the following kinds:
(a) an order declaring the interception or communication, as the case requires, to have been unlawful;
(b) an order that the defendant pay to the aggrieved person such damages as the court considers appropriate;
(c) an order in the nature of an injunction (including a mandatory injunction);
(d) an order that the defendant pay to the aggrieved person an amount not exceeding the amount that, in the opinion of the court, represents the total gross income derived by the defendant as a result of the interception or communication, as the case requires.
Terms etc. of orders
(8) Without limiting the orders that may be made by a court under this section, an order may:
(a) include such provisions as the court considers necessary for the purposes of the order; and
(b) be made either unconditionally or subject to such terms and conditions as the court determines.
Injunctive relief—variation etc.
(9) A court may revoke or vary an order in the nature of an injunction made by the court under this section.
Punitive damages
(10) A reference in paragraph (7)(b) to damages includes a reference to damages in the nature of punitive damages.
Minor irregularities in warrants etc.
(11) Despite subsection (1) of this section, this section does not apply to an interception that contravenes subsection 7(1) only because of a defect or irregularity (other than a substantial defect or irregularity):
(a) in, or in connection with the issue of, a document purporting to be a warrant; or
(b) in connection with the execution of a warrant, or the purported execution of a document purporting to be a warrant.
107B Limitation periods etc.
Interception—civil court remedy
(1) An application under subsection 107A(3) for the grant of remedial relief in respect of an interception is to be made within 6 years after the end of the interception.
Communication—civil court remedy
(2) An application under subsection 107A(4) for the grant of remedial relief in respect of a communication of information is to be made within 6 years after the communication.
Criminal court remedies
(3) An application under subsection 107A(5) or (6) for the grant of remedial relief is not subject to any limitation period, but must be made as soon as practicable after the conviction concerned.
107C No limitation on other liability
No limitation
(1) This Part does not limit any liability (whether criminal or civil) that a person has under any other provision of this Act or under any other law.
Remedial relief even if defendant convicted of offence
(2) An application under subsection 107A(3) or (4) may be made even if the defendant referred to in that subsection has been convicted of an offence under, or arising out of, this Act.
107D Concurrent operation of State and Territory laws
This Part is not intended to exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with this Part.
107E State or Territory courts—jurisdictional limits
This Part does not enable an inferior court of a State or Territory to grant remedial relief of a kind that the court is unable to grant under the law of that State or Territory.
107F Extended meaning of conviction—orders under section 19B of the Crimes Act 1914
A reference in this Part to the conviction of a person of an offence includes a reference to the making of an order under section 19B of the Crimes Act 1914 in relation to a person in respect of an offence.
Note: Section 19B of the Crimes Act 1914 empowers a court that has found a person to have committed an offence to take action without proceeding to record a conviction.
Chapter 3—Preserving and accessing stored communications
Part 3‑1A—Preserving stored communications
Division 1—Outline of this Part
107G Outline of this Part
This Part establishes a system of preserving certain stored communications that are held by a carrier. The purpose of the preservation is to prevent the communications from being destroyed before they can be accessed under certain warrants issued under this Act.
Under the system, certain agencies can give a preservation notice to a carrier requiring the carrier to preserve all stored communications that the carrier holds that relate to the person or telecommunications service specified in the notice. The carrier will breach its obligations under section 313 of the Telecommunications Act 1997 if it does not comply with the notice.
There are 2 types of preservation notices: domestic preservation notices (which cover stored communications that might relate either to a contravention of certain Australian laws or to security) and foreign preservation notices (which cover stored communications that might relate to a contravention of certain foreign laws or to certain international offences).
Division 2 deals with domestic preservation notices. There are 2 kinds of domestic preservation notices:
(a) historic domestic preservation notices, which cover stored communications held by the carrier on a particular day; and
(b) ongoing domestic preservation notices, which cover stored communications held by the carrier in a particular 30‑day period.
An issuing agency (which is a criminal law‑enforcement agency, or the Organisation, for an historic domestic preservation notice, and a criminal law‑enforcement agency that is an interception agency, or the Organisation, for an ongoing domestic preservation notice) can only give a domestic preservation notice if the conditions in section 107J are satisfied. There are certain grounds on which the notice must be revoked (see section 107L).
Division 3 deals with foreign preservation notices. Foreign preservation notices, like historic domestic preservation notices, cover stored communications held by the carrier on a particular day. Only the Australian Federal Police can give a foreign preservation notice to a carrier and it can only do so if a foreign country, the International Criminal Court or a War Crimes Tribunal has made a request for the preservation in accordance with section 107P. There are certain grounds on which the notice must be revoked (see section 107R).
Division 4 has miscellaneous provisions relating to both domestic and foreign preservation notices (such as provisions about the giving of evidentiary certificates by carriers and issuing agencies).
The Ombudsman has functions in relation to preservation notices given by issuing agencies (other than the Organisation) and the Inspector‑General of Intelligence and Security has functions in relation to preservation notices given by the Organisation.
Division 2—Domestic preservation notices
107H Domestic preservation notices
(1) An issuing agency may give a carrier a written notice (a domestic preservation notice) requiring the carrier to preserve, while the notice is in force, all stored communications that:
(a) relate to the person or telecommunications service specified in the notice; and
(b) the carrier holds at any time during:
(i) the period that starts at the time the carrier receives the notice and ends at the end of the day the carrier receives the notice (in which case the notice is an historic domestic preservation notice); or
(ii) the period that starts at the time the carrier receives the notice and ends at the end of the 29th day after the day the carrier receives the notice (in which case the notice is an ongoing domestic preservation notice).
(2) However, the agency can only give the notice if the conditions in subsection 107J(1) or (2) are satisfied.
(3) In the notice, the agency can only specify:
(a) one person; or
(b) one or more telecommunications services; or
(c) one person and one or more telecommunications services.
107J Conditions for giving domestic preservation notices
Notices given by criminal law‑enforcement agencies
(1) A domestic preservation notice may be given under subsection 107H(1) if:
(a) the issuing agency is:
(i) for an historic domestic preservation notice—a criminal law‑enforcement agency; and
(ii) for an ongoing domestic preservation notice—a criminal law‑enforcement agency that is an interception agency; and
(b) the agency is investigating a serious contravention; and
(c) the agency considers that there are reasonable grounds for suspecting that, in the relevant period for the notice, there are stored communications in existence, or stored communications might come into existence, that:
(i) might assist in connection with the investigation; and
(ii) relate to the person or telecommunications service specified in the notice; and
(d) the agency intends that if, at a later time, the agency considers that the stored communications would be likely to assist in connection with the investigation, then the agency will apply for a Part 2‑5 warrant or a stored communications warrant to access those communications; and
(e) for an ongoing domestic preservation notice—there is not another ongoing domestic preservation notice in force that:
(i) was given by the agency to the same carrier; and
(ii) specifies the same person or telecommunications service.
Notices given by the Organisation
(2) A domestic preservation notice may be given under subsection 107H(1) if:
(a) the issuing agency is the Organisation; and
(b) the Organisation considers that there are reasonable grounds for suspecting that, in the relevant period for the notice, there are stored communications in existence, or stored communications might come into existence, that:
(i) might assist the Organisation in carrying out its function of obtaining intelligence relating to security; and
(ii) relate to the person or telecommunications service specified in the notice; and
(c) the Organisation intends that if, at a later time, the Organisation considers that the stored communications would be likely to assist in carrying out that function, then the Director‑General of Security will request a Part 2‑2 warrant to access those communications; and
(d) for an ongoing domestic preservation notice—there is not another ongoing domestic preservation notice in force that:
(i) was given by the Organisation to the same carrier; and
(ii) specifies the same person or telecommunications service.
107K When a domestic preservation notice is in force
A domestic preservation notice:
(a) comes into force when the carrier receives it; and
(b) ceases to be in force at the earliest of the following times:
(i) the end of the period of 90 days, starting on the day the carrier receives it;
(ii) if the notice is revoked under section 107L—when the carrier receives notice of the revocation;
(iii) if a Part 2‑5 warrant or stored communications warrant authorising access to the stored communications covered by the notice is issued in relation to the issuing agency—when the warrant ceases to be in force;
(iv) if a Part 2‑2 warrant authorising access to the stored communications covered by the notice is issued in relation to the issuing agency—the end of the period of 5 days after the day the warrant was issued.
107L Revoking a domestic preservation notice
Discretionary revocation
(1) An issuing agency that has given a domestic preservation notice may revoke the notice at any time.
Mandatory revocation
(2) An issuing agency that has given a domestic preservation notice must revoke the notice if:
(a) if the issuing agency is a criminal law‑enforcement agency (including an interception agency):
(i) the condition in paragraph 107J(1)(b) or (c) is no longer satisfied; or
(ii) the agency decides not to apply for a Part 2‑5 warrant or stored communications warrant to access the stored communications covered by the notice; or
(b) if the issuing agency is the Organisation:
(i) the condition in paragraph 107J(2)(b) is no longer satisfied; or
(ii) the Organisation is satisfied that the Director‑General of Security will not request a Part 2‑2 warrant to access the stored communications covered by the notice.
Revocation effected by giving revocation notice
(3) A domestic preservation notice is revoked by the issuing agency giving the carrier to whom it was given written notice of the revocation.
107M Persons who act on the issuing agency’s behalf
Historic domestic preservation notices
(1) An historic domestic preservation notice may only be given or revoked on behalf of an issuing agency by:
(a) if the issuing agency is a criminal law‑enforcement agency—a person who may, under section 110, apply on the agency’s behalf for a stored communications warrant to access the stored communications covered by the notice; and
(b) if the issuing agency is the Organisation—a certifying person.
Ongoing domestic preservation notices
(2) An ongoing domestic preservation notice may only be given on behalf of an issuing agency by:
(a) if the issuing agency is a criminal law‑enforcement agency that is an interception agency—an authorised officer of the agency; and
(b) if the issuing agency is the Organisation—the Director‑General of Security.
(3) An ongoing domestic preservation notice may only be revoked on behalf of an issuing agency by:
(a) if the issuing agency is a criminal law‑enforcement agency that is an interception agency—an authorised officer of the agency; and
(b) if the issuing agency is the Organisation—a certifying person.
Division 3—Foreign preservation notices
107N When a foreign preservation notice can be given
(1) If the Australian Federal Police receives a request in accordance with section 107P, the Australian Federal Police must give the carrier to which the request relates a written notice (a foreign preservation notice) requiring the carrier to preserve, while the notice is in force, all stored communications that:
(a) relate to the person or telecommunications service specified in the notice; and
(b) the carrier holds at any time during the period that starts at the time the carrier receives the notice and ends at the end of the day the carrier receives the notice.
(2) In the notice, the Australian Federal Police can only specify:
(a) one person; or
(b) one or more telecommunications services; or
(c) one person and one or more telecommunications services.
107P Condition for giving a foreign preservation notice
(1) An entity mentioned in the following table may request the Australian Federal Police to arrange for the preservation of stored communications that:
(a) relate to a specified person or specified telecommunications service; and
(b) are held by a carrier; and
(c) are relevant to an investigation, investigative proceeding, or proceeding relating to a serious foreign contravention;
if the entity intends to make a request (an access request) under a provision mentioned in the table to the Attorney‑General to arrange for access to those stored communications.
Requesting access to stored communications |
Item | This entity: | May make an access request under: |
1 | a foreign country | paragraph 15B(d) of the Mutual Assistance in Criminal Matters Act 1987 |
2 | the International Criminal Court | paragraph 78A(b) of the International Criminal Court Act 2002 |
3 | a War Crimes Tribunal | paragraph 34A(b) of the International War Crimes Tribunals Act 1995 |
(2) The request by the entity to the Australian Federal Police must:
(a) be in writing; and
(b) name the entity or the entity’s authority concerned with the serious foreign contravention; and
(c) specify the serious foreign contravention that is the subject of the investigation, investigative proceeding or proceeding; and
(d) specify information identifying the stored communications to be preserved and the relationship between those communications and the serious foreign contravention; and
(e) specify any information the entity has that identifies the carrier that holds the stored communications; and
(f) if the stored communications relate to a specified person—specify any information the entity has that identifies the telecommunications service to which the stored communications relate; and
(g) specify the reasons why the stored communications need to be preserved; and
(h) specify that the entity intends to make an access request for the stored communications.
107Q When a foreign preservation notice is in force
A foreign preservation notice:
(a) comes into force when the carrier receives it; and
(b) ceases to be in force at the earlier of the following times:
(i) if the notice is revoked under section 107R—when the carrier receives notice of the revocation;
(ii) if a stored communications warrant authorising access to the stored communications covered by the notice is issued as a result of the access request—when the warrant ceases to be in force.
107R Revoking a foreign preservation notice
(1) If:
(a) an entity requests under section 107P the Australian Federal Police to arrange for the preservation of stored communications that are held by a carrier; and
(b) in response to the request, the Australian Federal Police gives a foreign preservation notice to the carrier in relation to those stored communications under subsection 107N(1); and
(c) during the period of 180 days starting on the day the carrier was given the notice, the entity did not make an access request to the Attorney‑General to arrange for access to those communications;
then the Australian Federal Police must, by the third working day after the end of that period, revoke the preservation notice by giving the carrier to whom it was given written notice of the revocation.
(2) If:
(a) an entity requests under section 107P the Australian Federal Police to arrange for the preservation of stored communications that are held by a carrier; and
(b) in response to the request, the Australian Federal Police gives a foreign preservation notice to the carrier in relation to those stored communications under subsection 107N(1); and
(c) the entity makes an access request to the Attorney‑General to arrange for access to those communications; and
(d) the Attorney‑General refuses that access request;
then the Australian Federal Police must, by the third working day after it is notified of the refusal, revoke the preservation notice by giving the carrier to whom it was given written notice of the revocation.
(3) If:
(a) an entity requests under section 107P the Australian Federal Police to arrange for the preservation of stored communications that are held by a carrier; and
(b) in response to the request, the Australian Federal Police gives a foreign preservation notice to the carrier in relation to those stored communications under subsection 107N(1); and
(c) the entity withdraws the request;
then the Australian Federal Police must, by the third working day after it is notified of the withdrawal, revoke the preservation notice by giving the carrier to whom it was given written notice of the revocation.
107S Persons who act on the AFP’s behalf
A foreign preservation notice must be given or revoked on behalf of the Australian Federal Police by an authorised officer of the Australian Federal Police.
Division 4—Provisions relating to preservation notices
107T Evidentiary certificates relating to actions by carriers
(1) The following:
(a) the Managing Director of a carrier or a body corporate of which the carrier is a subsidiary;
(b) the secretary of a carrier or a body corporate of which the carrier is a subsidiary;
(c) an employee of a carrier authorised in writing for the purposes of this paragraph by a person referred to in paragraph (a) or (b);
may issue a written certificate signed by him or her setting out such facts as he or she considers relevant with respect to acts or things done by, or in relation to, employees of the carrier in order to comply with a preservation notice.
(2) A document purporting to be a certificate issued under subsection (1) and purporting to be signed by a person referred to in paragraph (a), (b) or (c) of that subsection:
(a) is to be received in evidence in an exempt proceeding without further proof; and
(b) in an exempt proceeding, is conclusive evidence of the matters stated in the document.
(3) For the purposes of this section, the question whether a body corporate is a subsidiary of another body corporate is to be determined in the same manner as the question is determined under the Corporations Act 2001.
107U Evidentiary certificates relating to actions by issuing agencies
(1) A certifying official of an issuing agency may issue a written certificate signed by him or her setting out such facts as he or she considers relevant with respect to anything done by an officer or staff member of the agency in connection with a preservation notice.
(2) A document purporting to be a certificate issued under this section by a certifying official of an issuing agency and purporting to be signed by him or her:
(a) is to be received in evidence in an exempt proceeding without further proof; and
(b) in an exempt proceeding, is prima facie evidence of the matters stated in the document.
107V Certified copies of preservation notices
A document certified in writing by a certifying official of an issuing agency to be a true copy of a preservation notice is to be received in evidence in an exempt proceeding as if it were the original preservation notice.
107W How notices are to be given to carriers
For the purposes of this Part:
(a) a preservation notice; or
(b) a revocation notice under section 107L or 107R;
may only be given to a carrier by giving it to an authorised representative of the carrier.
Part 3‑1—Prohibition on access to stored communications
108 Stored communications not to be accessed
(1) A person commits an offence if:
(a) the person:
(i) accesses a stored communication; or
(ii) authorises, suffers or permits another person to access a stored communication; or
(iii) does any act or thing that will enable the person or another person to access a stored communication; and
(b) the person does so with the knowledge of neither of the following:
(i) the intended recipient of the stored communication;
(ii) the person who sent the stored communication.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
Note: This section does not prohibit accessing of communications, that are no longer passing over a telecommunications system, from the intended recipient or from a telecommunications device in the possession of the intended recipient.
(1A) Without limiting paragraph (1)(b), a person is taken for the purposes of that paragraph to have knowledge of an act referred to in paragraph (1)(a) if written notice of an intention to do the act is given to the person.
Note: For giving notice, see section 28A of the Acts Interpretation Act 1901.
(2) Subsection (1) does not apply to or in relation to:
(a) accessing a stored communication under a stored communications warrant; or
(b) accessing a stored communication under an interception warrant; or
(c) accessing a stored communication under a computer access warrant issued under section 25A of the Australian Security Intelligence Organisation Act 1979; or
(ca) accessing a stored communication under an authorisation given under a warrant in accordance with section 27E of the Australian Security Intelligence Organisation Act 1979; or
(cb) accessing a stored communication under a general computer access warrant; or
(cba) accessing a stored communication under a data disruption warrant; or
(cc) an act or thing done in compliance with an international production order (within the meaning of Schedule 1); or
(cd) accessing a stored communication under a network activity warrant; or
(ce) accessing a stored communication under a section 31A authorisation; or
(d) an act or thing done by an employee of a carrier in the course of his or her duties for or in connection with:
(i) the installation of any line, or the installation of any equipment, used or intended for use in connection with a telecommunications service; or
(ii) the operation or maintenance of a telecommunications system; or
(iii) the identifying or tracing of any person who has contravened, or is suspected of having contravened or being likely to contravene, a provision of Part 10.6 of the Criminal Code;
if it is reasonably necessary for the employee to do that act or thing in order to perform those duties effectively; or
(e) accessing a stored communication by another person lawfully engaged in duties relating to the installation, connection or maintenance of equipment or a line, if it is reasonably necessary for the person to access the communication in order to perform those duties effectively; or
(f) accessing a stored communication by a person lawfully engaged in duties relating to the installation, connection or maintenance of equipment used, or to be used, for accessing stored communications under:
(ia) preservation notices; or
(i) stored communications warrants; or
(ii) interception warrants; or
(iii) computer access warrants issued under section 25A of the Australian Security Intelligence Organisation Act 1979; or
(iv) authorisations given under warrants in accordance with section 27E of the Australian Security Intelligence Organisation Act 1979; or
(g) accessing a stored communication if the access results from, or is incidental to, action taken by an ASIO employee, in the lawful performance of his or her duties, for the purpose of:
(i) discovering whether a listening device is being used at, or in relation to, a particular place; or
(ii) determining the location of a listening device; or
(ga) accessing a stored communication if the access results from, or is incidental to, action taken by an ASIO affiliate, in accordance with the contract, agreement or other arrangement under which the ASIO affiliate is performing functions or services for the Organisation, for the purpose of:
(i) discovering whether a listening device is being used at, or in relation to, a particular place; or
(ii) determining the location of a listening device; or
(h) accessing a stored communication by an officer or staff member of the Australian Communications and Media Authority engaged in duties relating to enforcement of the Spam Act 2003.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).
(3) For the purposes of paragraph (2)(b), access to a stored communication is taken to be under an interception warrant if, and only if, the warrant would have authorised interception of the communication if it were still passing over a telecommunications system.
(3A) For the purposes of paragraph (2)(ce), access to a stored communication is taken to be under a section 31A authorisation if, and only if, the authorisation would have authorised interception of the communication if it were still passing over a telecommunications system.
(4) In determining, for the purposes of paragraphs (2)(d) and (e), whether an act or thing done by a person was reasonably necessary in order for the person to perform his or her duties effectively, a court is to have regard to such matters (if any) as are specified in, or ascertained in accordance with, the regulations.
Note: The civil remedy provisions in Part 3‑7 may apply to a contravention of this section.
Part 3‑2—Access by the Organisation to stored communications
109 Access to stored communications under Part 2‑2 warrants
In addition to authorising interception of communications, a Part 2‑2 warrant also authorises a person to access a stored communication if:
(a) the warrant would have authorised interception of the communication if it were still passing over a telecommunications system; and
(b) the person is approved under section 12 in respect of the warrant.
Part 3‑3—Access by criminal law‑enforcement agencies to stored communications
Division 1—Applications for warrants
110 Criminal law‑enforcement agencies may apply for stored communications warrants
(1) A criminal law‑enforcement agency may apply to an issuing authority for a stored communications warrant in respect of a person.
(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
(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).
(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.
(4) A nomination under subsection (3) is not a legislative instrument.
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 National Anti‑Corruption Commission;
(d) the ACC;
(e) subject to subsection (1A), the Immigration and Border Protection Department;
(ea) the Australian Securities and Investments Commission;
(eb) the Australian Competition and Consumer Commission;
(f) the Crime Commission (NSW);
(g) the Independent Commission Against Corruption (NSW);
(h) the Law Enforcement Conduct Commission (NSW);
(i) the IBAC (Vic.);
(j) the Crime and Corruption Commission (Qld);
(k) the Corruption and Crime Commission (WA);
(l) the Independent Commission Against Corruption (SA);
(m) subject to subsection (7), an authority or body for which a declaration under subsection (3) is in force.
(1A) Paragraph (1)(e) applies to the Immigration and Border Protection Department only in connection with the investigation by that Department of a contravention of:
(a) the Customs Act 1901; or
(b) the Crimes Act 1914; or
(c) the Criminal Code; or
(d) the Environment Protection and Biodiversity Conservation Act 1999; or
(e) Part 6 of the Australian Border Force Act 2015; or
(f) an Act prescribed in a legislative instrument made by the Minister for the purposes of this paragraph; or
(g) a provision of an Act, being a provision prescribed in a legislative instrument made by the Minister for the purposes of this paragraph.
Note: See also section 110B.
(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.
(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.
(3A) The Minister may make the declaration whether or not the head of the authority or body has made a request under subsection (2).
(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.
(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 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.
(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.
(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.
(6) The declaration may be subject to conditions.
(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.
(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.
(9) The revocation under subsection (8) of a declaration relating to an authority or body does not affect the validity of:
(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.
(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.
(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.
110B Declarations in relation to the Immigration and Border Protection Department
Provisions of Chapter 3 or 4 that do not apply to the Immigration and Border Protection Department
(1) The Minister may, by legislative instrument, declare that:
(a) a specified provision in Chapter 3 or 4, referring to a criminal law‑enforcement agency, does not apply in relation to the Immigration and Border Protection Department; or
(b) a specified provision in Chapter 4, referring to an enforcement agency, does not apply in relation to the Immigration and Border Protection Department.
Provisions of Chapter 3 or 4 that have a limited application to the Immigration and Border Protection Department
(2) The Minister may, by legislative instrument, declare that:
(a) a specified provision in Chapter 3 or 4, referring to a criminal law‑enforcement agency, applies in relation to the Immigration and Border Protection Department only to the extent specified in the declaration; or
(b) a specified provision in Chapter 4, referring to an enforcement agency, applies in relation to the Immigration and Border Protection Department only to the extent specified in the declaration.
111 Form of applications
(1) The application must be in writing.
(2) However, a person making the application on the agency’s behalf may make the application by telephone if the person:
(a) is the chief officer of the agency or a person in relation to whom an authorisation by the chief officer is in force under subsection (3); and
(b) thinks it necessary, because of urgent circumstances, to make the application by telephone.
(3) The chief officer of a criminal law‑enforcement agency may, in writing, authorise persons (including classes of persons) for the purposes of subsection (2). However, each person must be entitled under section 110 to make applications on the agency’s behalf.
112 Contents of written applications
The application must, if it is in writing, set out:
(a) the name of the agency; and
(b) the name of the person making the application on the agency’s behalf.
113 Affidavits to accompany written applications
(1) The application must, if it is in writing, be accompanied by an affidavit complying with this section.
(2) The affidavit must set out the facts and other grounds on which the application is based.
(3) Despite subsection (1), a written application may be accompanied by 2 or more affidavits that together set out each matter that, but for this subsection, this section would have required an affidavit accompanying the application to set out.
114 Information to be given on telephone applications
The information given to an issuing authority in connection with a telephone application to the issuing authority:
(a) must include particulars of the urgent circumstances because of which the person making the application on the agency’s behalf thinks it necessary to make the application by telephone; and
(b) must include each matter that, if the application had been made in writing, section 112 or 113 would have required the application, or an affidavit accompanying it, to set out; and
(c) must be given orally or in writing, as the issuing authority directs.
115 Giving further information to Judge
(1) An issuing authority may require further information to be given in connection with an application to the issuing authority for a warrant.
(2) The further information:
(a) must be given on oath if the application was made in writing; and
(b) must be given orally or otherwise, as the issuing authority directs.
Division 2—Issuing of warrants
116 Issuing of stored communications warrants
(1) An issuing authority to whom a criminal law‑enforcement agency has applied for a stored communications warrant in respect of a person may, in his or her discretion, issue such a warrant if satisfied, on the basis of the information given to him or her under this Part in connection with the application, that:
(a) Division 1 has been complied with in relation to the application; and
(b) in the case of a telephone application—because of urgent circumstances, it was necessary to make the application by telephone; and
(c) there are reasonable grounds for suspecting that a particular carrier holds stored communications:
(i) that the person has made; or
(ii) that another person has made and for which the person is the intended recipient; and
(d) information that would be likely to be obtained by accessing those stored communications under a stored communications warrant would be likely to assist in connection with:
(i) unless subparagraph (ii) applies—the investigation by the agency of a serious contravention in which the person is involved (including as a victim of the serious contravention); or
(ii) for an international assistance application—the investigation, investigative proceeding, or proceeding by the entity to which the application relates, of a serious foreign contravention to which the application relates and in which the person is involved (including as a victim of the serious foreign contravention); and
(da) if the stored communications warrant is applied for in relation to a person who is the victim of the serious contravention—the person is unable to consent, or it is impracticable for the person to consent, to those stored communications being accessed; and
(e) in any case—having regard to the matters referred to in subsection (2) or (2A) (as the case requires), and to no other matters, the issuing authority should issue a warrant authorising access to such stored communications.
(2) For an application other than an international assistance application, the matters to which the issuing authority must have regard are:
(a) how much the privacy of any person or persons would be likely to be interfered with by accessing those stored communications under a stored communications warrant; and
(b) the gravity of the conduct constituting the serious contravention; and
(c) how much the information referred to in subparagraph (1)(d)(i) would be likely to assist in connection with the investigation; and
(d) to what extent methods of investigating the serious contravention that do not involve the use of a stored communications warrant in relation to the person have been used by, or are available to, the agency; and
(e) how much the use of such methods would be likely to assist in connection with the investigation by the agency of the serious contravention; and
(f) how much the use of such methods would be likely to prejudice the investigation by the agency of the serious contravention, whether because of delay or for any other reason.
(2A) For an international assistance application, the matters to which the issuing authority must have regard are:
(a) how much the privacy of any person or persons would be likely to be interfered with by accessing those stored communications under a stored communications warrant; and
(b) the gravity of the conduct constituting the serious foreign contravention; and
(c) how much the information referred to in subparagraph (1)(d)(ii) would be likely to assist in connection with the investigation, investigative proceeding, or proceeding, to the extent that this is possible to determine from information obtained from the entity to which the application relates.
(3) The warrant may be issued in relation to the investigation of more than one serious contravention or serious foreign contravention, but cannot relate to both a serious contravention and a serious foreign contravention.
117 What stored communications warrants authorise
A stored communications warrant authorises persons approved under subsection 127(2) in respect of the warrant to access, subject to any conditions or restrictions that are specified in the warrant, a stored communication:
(a) that was made by the person in respect of whom the warrant was issued; or
(b) that another person has made and for which the intended recipient is the person in respect of whom the warrant was issued;
and that becomes, or became, a stored communication before the warrant is first executed in relation to the carrier that holds the communication.
118 Form and content of stored communications warrants
(1) A stored communications warrant:
(a) must be in accordance with the prescribed form; and
(b) must be signed by the issuing authority who issues it.
(2) A stored communications warrant may specify conditions or restrictions relating to accessing stored communications under the warrant.
(3) A stored communications warrant must set out short particulars of each serious contravention or serious foreign contravention in relation to which the issuing authority issuing the warrant was satisfied, on the application for the warrant, as mentioned in subparagraph 116(1)(d)(i) or (ii), as the case may be.
119 Duration of stored communications warrants
(1) A stored communications warrant remains in force:
(a) until it is first executed; or
(b) until the end of the period of 5 days after the day on which it was issued;
whichever occurs sooner.
(2) However, if the warrant relates to more than one telecommunications service and those services are not all operated by the same carrier, the warrant remains in force, to the extent that it relates to a telecommunications service operated by a particular carrier:
(a) until it is first executed in relation to a telecommunications service operated by that particular carrier; or
(b) until the end of the period of 5 days after the day on which it was issued;
whichever occurs sooner.
(3) An issuing authority must not vary a stored communications warrant by extending the period for which it is to be in force.
(4) This section does not prevent the issue of a further warrant in respect of the person in respect of whom the warrant was issued.
(5) However, if the further warrant relates to the same telecommunications service as the previous warrant, it must not be issued within 3 days after the day on which the previous warrant was executed or (if subsection (2) applies) was last executed.
Division 3—How warrants etc. are dealt with
120 Stored communications warrants issued on telephone applications
(1) An issuing authority who issues a stored communications warrant on a telephone application:
(a) must, as soon as practicable after completing and signing the warrant:
(i) inform the person who made the application, on behalf of the criminal law‑enforcement agency concerned, of the terms of the warrant, the day on which it was signed and the time at which it was signed; and
(ii) give the warrant to that person; and
(b) must keep a copy of the warrant.
(2) A person who makes a telephone application on a criminal law‑enforcement agency’s behalf must, within one day after the day on which a warrant is issued on the application:
(a) cause each person who gave information to the issuing authority in connection with the application to swear an affidavit setting out the information so given by the person; and
(b) give to the issuing authority:
(i) the affidavit or affidavits; and
(ii) unless the applicant is the chief officer of the criminal law‑enforcement agency—a copy of an authorisation by the chief officer under subsection 111(3) that was in force in relation to the applicant when the application was made.
(3) An issuing authority may, by writing signed by him or her, revoke a warrant that he or she issued on a telephone application if satisfied that subsection (2) has not been complied with in relation to the warrant. If he or she does so, he or she must:
(a) forthwith inform the person who made the application on the criminal law‑enforcement agency’s behalf, or the chief officer of the criminal law‑enforcement agency, of the revocation; and
(b) give the instrument of revocation to that person, or to the chief officer, as soon as practicable.
(4) The chief officer of that agency must, if another criminal law‑enforcement agency is exercising authority under the warrant:
(a) cause the chief officer of the other agency to be informed forthwith of the revocation; and
(b) cause a copy of the instrument of revocation to be given as soon as practicable to the chief officer of the other agency.
121 What happens when stored communications warrants are issued
The chief officer of the agency must cause:
(a) an authorised representative of the carrier that holds the stored communications to which the warrant relates to be informed forthwith of the issue of the warrant; and
(b) a copy of the warrant, certified in writing by a certifying officer of the agency to be a true copy of the warrant, to be given as soon as practicable to that authorised representative.
122 Revocation of stored communications warrants by chief officers
(1) The chief officer of a criminal law‑enforcement agency to which a stored communications warrant has been issued must, on being satisfied that the grounds on which the warrant was issued have ceased to exist:
(a) cause the chief officer of any other criminal law‑enforcement agency that is exercising authority under the warrant to be informed forthwith of the proposed revocation of the warrant; and
(b) by writing signed by him or her, revoke the warrant.
(2) The chief officer of a criminal law‑enforcement agency may at any time, by writing signed by him or her, revoke a warrant issued to the agency after causing the chief officer of any other criminal law‑enforcement agency that is exercising authority under the warrant to be informed forthwith that the chief officer proposes to revoke the warrant.
(3) The chief officer of a criminal law‑enforcement agency may delegate his or her power under subsection (2) to a certifying officer of the agency.
(4) This section does not apply in relation to a warrant that has ceased to be in force.
123 What happens when stored communications warrants are revoked
(1) Upon revoking a stored communications warrant, the chief officer of a criminal law‑enforcement agency must cause the chief officer of any other criminal law‑enforcement agency that is exercising authority under the warrant to be informed forthwith of the revocation.
(2) If an authorised representative of a carrier has been informed, under section 121, of the issue of a stored communications warrant and that warrant is subsequently revoked, the chief officer of the criminal law‑enforcement agency to which the warrant was issued must:
(a) cause that authorised representative to be informed forthwith of the revocation; and
(b) cause a copy of the instrument of revocation, certified in writing by a certifying officer to be a true copy of the instrument, to be given as soon as practicable to that authorised representative.
124 Access to additional telecommunications services under stored communications warrants
(1) If:
(a) an authorised representative of a carrier has been informed, under section 121, of the issue of a stored communications warrant; and
(b) it is proposed, under the warrant, to access stored communications that, immediately before they became stored communications, had passed over a telecommunications service operated by a carrier; and
(c) the service was not identified in the warrant;
the chief officer must cause that authorised representative to be given, as soon as practicable, a description in writing of the service sufficient to identify it.
(2) If:
(a) an authorised representative of a carrier has been informed, under subsection (1) of the issue of a stored communications warrant; and
(b) the chief officer of the agency to which the warrant was issued, or a certifying officer of that agency, is satisfied that it is no longer necessary to access stored communications that, immediately before they became stored communications, had passed over that service;
the chief officer or the certifying officer must cause:
(c) that authorised representative to be informed forthwith of the fact; and
(d) confirmation in writing of the fact to be given as soon as practicable to that authorised representative.
Division 4—Provisions relating to execution of warrants
125 Entry into force of stored communications warrants
A stored communications warrant comes into force when it is issued.
126 Limit on authority conferred by warrant
A stored communications warrant does not authorise access to stored communications unless notification of the issue of the warrant has been received under section 121 by an authorised representative of the carrier holding the stored communications.
127 Exercise of authority conferred by warrant
(1) The authority conferred by a stored communications warrant may only be exercised by a person in relation to whom an approval under subsection (2) is in force in relation to the warrant.
(2) The chief officer of a criminal law‑enforcement agency, or an officer of a criminal law‑enforcement agency in relation to whom an appointment under subsection (3) is in force, may approve any of the following persons to exercise the authority conferred by warrants (or classes of warrants) issued to the agency:
(a) officers (or classes of officers) of the agency or another criminal law‑enforcement agency;
(b) staff members (or classes of staff members) of the agency or another criminal law‑enforcement agency.
(3) The chief officer of a criminal law‑enforcement agency may appoint in writing an officer of the agency to be an approving officer for the purposes of subsection (2).
128 Provision of technical assistance
(1) Despite subsection 127(1), a designated officer, or an employee of a carrier, may provide technical assistance to an officer or staff member of a criminal law‑enforcement agency who is exercising the authority conferred by a stored communications warrant.
(2) For the purposes of subsection (1), the provision of technical assistance includes (but is not limited to):
(a) the doing of any act in connection with:
(i) the installation of equipment for the purposes of accessing stored communications in accordance with a stored communications warrant; or
(ii) the maintenance, testing or use of such equipment; or
(iii) the removal of such equipment; and
(b) the doing of any act involved in the accessing of a stored communication under a stored communications warrant, to the extent that the act is incidental to the doing of an act referred to in paragraph (a).
(3) The chief officer of a criminal law‑enforcement agency or a person who is an approving officer for a criminal law‑enforcement agency under subsection 127(3) may, in writing, declare persons to be designated officers for the purposes of this section.
129 Evidentiary certificates relating to actions by carriers
(1) The following:
(a) the Managing Director of a carrier or a body corporate of which the carrier is a subsidiary;
(b) the secretary of a carrier or a body corporate of which the carrier is a subsidiary;
(c) an employee of a carrier authorised in writing for the purposes of this paragraph by a person referred to in paragraph (a) or (b);
may issue a written certificate signed by him or her setting out such facts as he or she considers relevant with respect to acts or things done by, or in relation to, employees of the carrier in order to enable a warrant to be executed.
(2) A document purporting to be a certificate issued under subsection (1) and purporting to be signed by a person referred to in paragraph (a), (b) or (c) of that subsection:
(a) is to be received in evidence in an exempt proceeding without further proof; and
(b) in an exempt proceeding, is conclusive evidence of the matters stated in the document.
(3) For the purposes of this section, the question whether a body corporate is a subsidiary of another body corporate is to be determined in the same manner as the question is determined under the Corporations Act 2001.
130 Evidentiary certificates relating to actions by criminal law‑enforcement agencies
(1) A certifying officer of a criminal law‑enforcement agency may issue a written certificate signed by him or her setting out such facts as he or she considers relevant with respect to:
(a) anything done by an officer or staff member of the agency in connection with the execution of a stored communications warrant; or
(b) anything done by an officer or staff member of the agency in connection with:
(i) the communication by a person to another person of information obtained by the execution of such a warrant; or
(ii) the making use of such information; or
(iii) the making of a record of such information; or
(iv) the custody of a record of such information; or
(v) the giving in evidence of such information.
(2) A document purporting to be a certificate issued under this section by a certifying officer of a criminal law‑enforcement agency and to be signed by him or her:
(a) is to be received in evidence in an exempt proceeding without further proof; and
(b) in an exempt proceeding, is prima facie evidence of the matters stated in the document.
131 Certified copies of stored communications warrants
A document certified in writing by a certifying officer of a criminal law‑enforcement agency to be a true copy of a stored communications warrant is to be received in evidence in an exempt proceeding as if it were the original warrant.
132 Obstruction
(1) A person commits an offence if the person obstructs or hinders another person acting under a stored communications warrant.
Penalty: Imprisonment for 6 months or 30 penalty units, or both.
(2) Subsection (1) does not apply if the person obstructing or hindering has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).
Part 3‑4—Dealing with accessed information etc.
Division 1—Prohibition on dealing with accessed information etc.
133 No dealing with accessed information etc.
(1) A person commits an offence if:
(a) the person:
(i) communicates information to another person; or
(ii) makes use of information; or
(iii) makes a record of information; or
(iv) gives information in evidence in a proceeding; and
(b) the information is:
(i) lawfully accessed information; or
(ii) information obtained by accessing a stored communication in contravention of subsection 108(1); or
(iia) preservation notice information; or
(iii) stored communications warrant information.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
(2) Subsection (1) does not apply to conduct permitted under this Part or section 299.
Note 1: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).
Note 2: The civil remedy provisions in Part 3‑7 may apply to a contravention of this section.
Division 2—Permitted dealings with accessed information
134 Dealing in preservation notice information or stored communications warrant information
A person may, for the purposes of Part 3‑1A, 3‑2, 3‑3, 3‑5 or 3‑6 or Chapter 4A:
(a) communicate preservation notice information or stored communications warrant information to another person; or
(b) make use of preservation notice information or stored communications warrant information; or
(c) make a record of preservation notice information or stored communications warrant information; or
(d) give preservation notice information or stored communications warrant information in evidence in a proceeding.
135 Dealing in information by employees of carriers
Communicating information to the appropriate criminal law‑enforcement agency
(1) An employee of a carrier may communicate information obtained by accessing stored communications under a stored communications warrant to:
(a) the officer of the criminal law‑enforcement agency who applied for the warrant on the agency’s behalf; or
(b) an officer of the agency in relation to whom an authorisation under subsection (2) by the chief officer of the agency is in force in relation to the warrant.
(2) The chief officer of a criminal law‑enforcement agency may authorise in writing officers, or classes of officers, of the agency to receive information obtained by accessing stored communications under stored communications warrants, or classes of such warrants, issued to the agency.
Information relating to operation of networks etc.
(3) An employee of a carrier may communicate or make use of, or cause to be communicated, lawfully accessed information or information that has been obtained by accessing a stored communication in contravention of subsection 108(1) if:
(a) the employee does so in the performance of his or her duties as such an employee; and
(b) the information relates to:
(i) the operation or maintenance of a telecommunications network operated by the carrier; or
(ii) the supply of services by the carrier by means of a telecommunications network.
(4) An employee of a carrier may communicate or cause to be communicated to another carrier, or to an employee of another carrier, lawfully accessed information or information that has been obtained by accessing a stored communication in contravention of subsection 108(1) if:
(a) the communication of the information is for the purpose of the carrying on by the other carrier of its business relating to the supply of services by means of a telecommunications network operated by the other carrier; and
(b) the information relates to:
(i) the operation or maintenance of a telecommunications network operated by the other carrier; or
(ii) the supply of services by the other carrier by means of a telecommunications network.
Preservation notice information
(4A) An employee of a carrier may, in the performance of his or her duties as such an employee, communicate or make use of, or cause to be communicated, preservation notice information if:
(a) the employee does so in the performance of his or her duties as such an employee; and
(b) the information is reasonably necessary to enable the carrier to comply with the preservation notice.
(4B) An employee of a carrier may communicate or cause to be communicated to another carrier, or to an employee of another carrier, preservation notice information if the information is reasonably necessary to enable the carrier to comply with the preservation notice.
Stored communications warrant information
(5) An employee of a carrier may, in the performance of his or her duties as such an employee, communicate or make use of, or cause to be communicated, stored communications warrant information if:
(a) the employee does so in the performance of his or her duties as such an employee; and
(b) the information is reasonably necessary to enable access to a stored communication under a stored communications warrant.
(6) An employee of a carrier may communicate or cause to be communicated to another carrier, or to an employee of another carrier, stored communications warrant information if the information is reasonably necessary to enable access to a stored communication under a stored communications warrant.
136 Dealing in connection with Organisation’s functions
(1) A person may, in connection with the performance by the Organisation of its functions, or otherwise for purposes of security, communicate to another person, make use of, or make a record of the following:
(a) lawfully accessed information other than foreign intelligence information;
(aa) preservation notice information;
(b) stored communications warrant information.
(2) The Director‑General of Security may, in connection with the performance by the Organisation of its functions, communicate foreign intelligence information to an ASIO employee or ASIO affiliate.
(3) An ASIO employee or ASIO affiliate may, in connection with the performance by the Organisation of its functions, communicate foreign intelligence information to the Director‑General of Security or to another ASIO employee or ASIO affiliate.
(4) The Director‑General of Security or an ASIO employee or ASIO affiliate may, in connection with the performance by the Organisation of its functions, make use of, or make a record of, foreign intelligence information.
137 Dealing in information obtained by Organisation
(1) The Director‑General of Security may, in accordance with subsection 18(3) or (4A), or subsection 19A(4) of the Australian Security Intelligence Organisation Act 1979, communicate the following to another person:
(a) lawfully accessed information;
(aa) preservation notice information;
(b) stored communications warrant information.
(1A) The Director‑General of Security may:
(a) for the purposes (if any) approved by the Attorney‑General in writing; and
(b) subject to the conditions (if any) specified by the Attorney‑General in writing;
communicate foreign intelligence information to another person (the second person), other than a person to whom the Director‑General could communicate the information under subsection (1) or 136(2).
(1B) The second person to whom the foreign intelligence information is communicated under subsection (1A), and any other person to whom that information is communicated under this subsection, may communicate it to another person, and use and make a record of it.
(2) The communication under subsection (1) or (1A) may be made by the Director‑General of Security personally or by a person authorised by the Director‑General.
(3) A person to whom foreign intelligence information has been communicated under subsection (1) may, in the proper performance or exercise of the person’s functions, duties or powers:
(a) for the purposes (if any) approved, and subject to the conditions (if any) specified, by the Attorney‑General in writing:
(i) communicate that information to another person (the second person); and
(ii) use that information; and
(b) make a record of that information;
and the second person, and any other person to whom that information is communicated under this subsection, may communicate it to another person, and use and make a record of it.
(4) An approval or a condition under subsection (1A) or (3) is not a legislative instrument.
138 Employee of carrier may communicate information to criminal law‑enforcement agency
(1) An employee of a carrier may, for a purpose or purposes connected with the investigation by the Australian Communications and Media Authority of a serious contravention or with the performance of its functions relating to enforcement of the Spam Act 2003, and for no other purpose, communicate to an officer or staff member of the authority the following:
(a) lawfully accessed information other than foreign intelligence information;
(aa) preservation notice information;
(b) stored communications warrant information.
(2) An employee of a carrier may, for a purpose or purposes connected with the investigation by any other criminal law‑enforcement agency of a serious contravention, and for no other purpose, communicate to an officer or staff member of the agency the following:
(a) lawfully accessed information other than foreign intelligence information;
(aa) preservation notice information;
(b) stored communications warrant information.
139 Dealing for purposes of investigation etc.
(1) An officer or staff member of a criminal law‑enforcement agency or an eligible Commonwealth authority may, for one or more purposes referred to in subsection (2) or (4A), and for no other purpose (other than a purpose referred to in subsection 139A(2) or 139B(2), if applicable), communicate to another person, make use of, or make a record of the following:
(a) lawfully accessed information other than foreign intelligence information;
(aa) preservation notice information;
(b) stored communications warrant information.
(2) In the case of information obtained by the agency other than through the execution of a warrant issued as a result of an international assistance application, the purposes are purposes connected with:
(a) an investigation by the agency or by another criminal law‑enforcement agency of a contravention to which subsection (3) applies; or
(b) the making by an authority, body or person of a decision whether or not to begin a proceeding to which subsection (4) applies; or
(c) a proceeding to which subsection (4) applies; or
(d) the keeping of records by the agency under Part 3‑5; or
(e) an authorisation under any of the following provisions in respect of the information:
(i) subsection 13A(1) of the Mutual Assistance in Criminal Matters Act 1987;
(ii) section 69A of the International Criminal Court Act 2002;
(iii) section 25A of the International War Crimes Tribunals Act 1995.
(3) A contravention to which this subsection applies is a contravention of a law of the Commonwealth, a State or a Territory that:
(a) is a serious offence; or
(b) is an offence punishable:
(i) by imprisonment for a period, or a maximum period, of at least 12 months; or
(ii) if the offence is committed by an individual—by a fine, or a maximum fine, of at least 60 penalty units; or
(iii) if the offence cannot be committed by an individual—by a fine, or a maximum fine, of at least 300 penalty units; or
(c) could, if established, render the person committing the contravention liable:
(i) if the contravention were committed by an individual—to pay a pecuniary penalty of 60 penalty units or more, or to pay an amount that is the monetary equivalent of 60 penalty units or more; or
(ii) if the contravention cannot be committed by an individual—to pay a pecuniary penalty of 300 penalty units or more, or to pay an amount that is the monetary equivalent of 300 penalty units or more.
(4) A proceeding to which this subsection applies is:
(a) a proceeding by way of a prosecution for an offence of a kind referred to in paragraph (3)(a) or (b); or
(b) a proceeding for the confiscation or forfeiture of property, or for the imposition of a pecuniary penalty, in connection with the commission of such an offence; or
(ba) a proceeding under the Spam Act 2003; or
(c) a proceeding for the taking of evidence pursuant to section 43 of the Extradition Act 1988, in so far as the proceeding relates to such an offence; or
(d) a proceeding for the extradition of a person from a State or a Territory to another State or Territory, in so far as the proceeding relates to such an offence; or
(e) a proceeding for recovery of a pecuniary penalty for a contravention of a kind referred to in paragraph (3)(c); or
(f) a police disciplinary proceeding.
(4A) In the case of information obtained by the agency through the execution of a warrant issued as a result of an international assistance application, the purposes are purposes connected with:
(a) providing the information to the entity to which the application relates, or to an appropriate authority of that entity; or
(b) the keeping of records by the agency under Part 3‑5.
(5) To avoid doubt, a reference in subsection (3) to a number of penalty units in relation to a contravention of a law of a State or a Territory includes a reference to an amount of a fine or pecuniary penalty that is equivalent, under section 4AA of the Crimes Act 1914, to that number of penalty units.
139AA Dealing in connection with Inspector‑General’s functions
(1) A person may, in connection with an IGIS official exercising a power, or performing a function or duty, as an IGIS official, communicate to another person, make use of, or make a record of, the following:
(a) lawfully accessed information;
(b) information obtained by accessing a stored communication (whether or not that information is lawfully accessed information);
(c) preservation notice information;
(d) stored communications warrant information.
(2) This section applies despite any other provision of this Part.
139A Dealing for integrity purposes
(1) An officer or staff member of a Commonwealth agency may, for one or more purposes referred to in subsection (2), and for no other purpose (other than a purpose referred to in subsection 139(2) or (4A) or 139B(2), if applicable), communicate to another person, make use of, or make a record of the following:
(a) lawfully accessed information other than foreign intelligence information;
(b) stored communications warrant information.
(2) The purposes are:
(a) a permitted purpose mentioned in the table in section 6S in relation to the agency or another Commonwealth agency; or
(b) purposes connected with the keeping of records by the agency under Part 3‑5.
139B Dealing for purposes relating to Part 5.3 orders or Part 9.10 orders
(1) An officer or staff member of:
(a) the Australian Federal Police; or
(b) the Police Force of a State or Territory;
may, for one or more purposes referred to in subsection (2), and for no other purpose (other than a purpose referred to in subsection 139(2) or (4A) or 139A(2), if applicable), communicate to another person, make use of, or make a record of lawfully accessed information other than foreign intelligence information.
(2) The purposes are purposes connected with the performance of a function or duty, or the exercise of a power, by a person, court or other body under, or in relation to a matter arising under:
(a) Division 104 (control orders) or Division 105A (post‑sentence orders) of the Criminal Code; or
(b) a post‑sentence detention law or a post‑sentence supervision law; or
(c) Division 395 of the Criminal Code (community safety orders).
140 Dealing with information if access suspected to be unlawful
(1) A person may communicate information to the Minister, the Director of Public Prosecutions, the Commissioner of Police, the National Anti‑Corruption Commissioner, the Chief Executive Officer of the ACC, the Inspector of the National Anti‑Corruption Commission or a person assisting the NACC Inspector if:
(a) the information was obtained by accessing a stored communication; and
(b) the person suspects on reasonable grounds that the information may tend to establish that an offence of the following kind (a suspected offence) has been committed:
(i) an offence against subsection 108(1) constituted by the access, or by authorising, suffering or permitting, or doing an act or thing to enable, the access;
(ii) an offence against section 133 constituted by communicating to a person, making use of, making a record of, or giving in evidence in a proceeding, information obtained by the access;
(iii) an ancillary offence relating to an offence of a kind referred to in subparagraph (i) or (ii) of this paragraph.
(2) A person to whom the information is communicated in accordance with subsection (1) may communicate to another person, make use of, or make a record of, some or all of the information for a purpose (or 2 or more purposes) connected with:
(a) an investigation of a suspected offence; or
(b) the making by an authority, body or person of a decision whether or not to begin a proceeding by way of a prosecution for a suspected offence; or
(c) a proceeding by way of a prosecution for a suspected offence;
and for no other purpose.
141 Making record for purpose of permitted communication
A person who is permitted by section 135, 137 or 138 or subsection 140(1) to communicate particular information to another person may:
(a) make a record of the information, or
(b) cause such a record to be made;
for the purpose of so communicating the information in accordance with that section or subsection.
142 Further dealing by recipient of certain information
A person to whom information has, in accordance with subsection 135(4), section 139, 139AA, 139A or 139B, subsection 140(2) or this section, been communicated for a purpose, or for 2 or more purposes, may:
(a) communicate that information to another person; or
(b) make use of, or make a record of, that information;
for that purpose, or for one or more of those purposes, and for no other purpose.
142A Communicating information obtained as a result of an international assistance application
(1) If information is obtained through the execution of a warrant issued as a result of an international assistance application, a person may only communicate the information to the entity to which the application relates on the following conditions:
(a) that the information will only be used for the purposes for which the entity requested the information;
(b) that any document or other thing containing the information will be destroyed when it is no longer required for those purposes;
(c) any other condition determined, in writing, by the Attorney‑General.
(2) Subsection (1) has effect despite subsection 139(4A) and section 142.
(3) A determination under paragraph (1)(c) is not a legislative instrument.
143 Giving information in evidence in exempt proceeding
(1) A person may give lawfully accessed information (other than foreign intelligence information) in evidence in an exempt proceeding.
(2) For the purposes of applying subsection (1) in relation to information, the question whether or not a stored communication was accessed in contravention of subsection 108(1) may be determined on the balance of probabilities.
(3) A person may give stored communications warrant information in evidence in an exempt proceeding.
144 Giving information in evidence if communication unlawfully accessed
(1) A person may give, in evidence in an exempt proceeding, information obtained by accessing stored communications obtained in contravention of subsection 108(1) if:
(a) the access was purportedly under a stored communications warrant; and
(b) the court in which, or the tribunal, body, authority or person before which, the proceeding is held is satisfied that:
(i) but for an irregularity, the access would not have constituted a contravention of subsection 108(1); and
(ii) the irregularity is not a substantial defect or irregularity; and
(iii) in all the circumstances, the irregularity should be disregarded.
(2) A reference in subsection (1) to an irregularity is a reference to a defect or irregularity:
(a) in, or in connection with the issue of, a document purporting to be a warrant; or
(b) in connection with the execution of a warrant, or the purported execution of a document purporting to be a warrant.
145 Evidence that has been given in exempt proceeding
If information is given in evidence in an exempt proceeding under section 143 or 144, that information, or any part of that information, may later be given in evidence in any proceeding.
Note: This section was inserted as a response to the decision of the Court of Appeal of New South Wales in Wood v Beves (1997) 92 A Crim R 209.
146 Giving information in evidence in civil proceedings for remedial relief
(1) A person may give information obtained by accessing a stored communication in contravention of subsection 108(1) in evidence in a proceeding by way of an application under section 165 for remedial relief in respect of:
(a) the access; or
(b) the communication (in contravention of section 133) of information obtained by the access.
(2) A person may give preservation notice information or stored communications warrant information in evidence in a proceeding by way of an application under section 165.
Division 3—Admissibility of evidence
147 Accessed material inadmissible except as provided
(1) Neither information, nor a record, obtained by accessing a stored communication is admissible in evidence in a proceeding except in so far as section 143, 144, 145 or 146 permits a person to give in evidence in that proceeding information so obtained.
(2) Subsection (1) of this section applies whether or not the stored communication was accessed in contravention of subsection 108(1).
(3) However, for the purpose of determining the extent (if any) to which section 143, 144, 145 or 146 permits a person to give in evidence in a proceeding information obtained by the access:
(a) a person may communicate to another person, make use of, make a record of, or give in evidence in the last‑mentioned proceeding, information so obtained; and
(b) information, or a record, so obtained is admissible in evidence in the last‑mentioned proceeding.
148 Stored communications warrant information inadmissible except as provided
(1) Stored communications warrant information is admissible in evidence in a proceeding only to the extent that section 143, 145 or 146 permits a person to give stored communications warrant information in evidence in that proceeding.
(2) For the purpose of determining the extent (if any) to which section 143, 145 or 146 permits a person to give stored communications warrant information in evidence in a proceeding:
(a) a person may:
(i) communicate the information to another person; or
(ii) make use of the information; or
(iii) make a record of the information; or
(iv) give the information in evidence in the proceeding; and
(b) the information is admissible in evidence in the proceeding.
149 Evidence that is otherwise inadmissible
This Part does not render:
(a) information; or
(b) any record that was obtained by accessing a stored communication (whether or not in contravention of subsection 108(1));
admissible in evidence in a proceeding to a greater extent than it would have been admissible in evidence in that proceeding if this Part had not been enacted.
Division 4—Destruction of records
150 Destruction of records
(1) If:
(a) information, or a record, that was obtained by accessing a stored communication (whether or not in contravention of subsection 108(1)) is in a criminal law‑enforcement agency’s possession; and
(b) the chief officer of the agency is satisfied that the information or record is not likely to be required for a purpose referred to in subsection 139(2) or (4A), 139A(2) or 139B(2);
the chief officer must cause the information or record to be destroyed forthwith.
(2) The chief officer must, as soon as practicable, and in any event within 3 months, after each 30 June, give to the Minister a written report that sets out the extent to which information and records were destroyed in accordance with this section.
Part 3‑5—Keeping and inspection of records
Division 1—Obligation to keep records
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 international assistance, being a request to which an international 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 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;
(i) documents indicating whether information or a record was destroyed in accordance with section 150;
(j) each evidentiary certificate issued under this Chapter;
(k) each report given to the Minister under Division 1 of Part 3‑6;
(l) documents and other materials of a kind prescribed under subsection (2) of this section.
(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.
(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.
Division 3—Inspection of preservation notice records by Inspector‑General of Intelligence and Security
158A Functions of the Inspector‑General of Intelligence and Security
(1) Under the Inspector‑General of Intelligence and Security Act 1986, the Inspector‑General of Intelligence and Security has functions in relation to preservation notices given by the Organisation.
(2) In particular, the Inspector‑General of Intelligence and Security has the function of:
(a) inquiring into any matter that relates to compliance by the Organisation with this Act (see subparagraph 8(1)(a)(i) of that Act); and
(b) conducting such inspections of the Organisation as the Inspector‑General considers appropriate for the purpose of giving effect to the objects of that Act (see section 9A of that Act).
Part 3‑6—Reports about access to stored communications
Division 1—Reports to the Minister
159 Annual reports regarding applications and warrants under Part 3‑3
(1) The chief officer of a criminal law‑enforcement agency must, as soon as practicable, and in any event within 3 months, after each 30 June, give to the Minister a written report that sets out such information as:
(a) Division 2 (other than section 163A) requires to be set out in the Minister’s report under that Division relating to the year ending on that 30 June; and
(b) can be derived from the agency’s records.
(2) Section 34C of the Acts Interpretation Act 1901 does not apply in relation to a report under this section.
160 Minister may seek further information from Commonwealth agency
(1) The Minister may, by writing, request the chief officer of a criminal law‑enforcement agency to give to the Minister in writing specified information that:
(a) the Minister needs in connection with preparing a report under Division 2; and
(b) is not contained in a report by the chief officer under section 159.
(2) To the extent that it is practicable to do so, the chief officer must comply with the request.
Division 2—Reports by the Minister
161 Annual report by Minister about stored communications warrants
The Minister must, as soon as practicable after each 30 June, cause to be prepared a written report that relates to the year ending on that 30 June and complies with this Division.
161A Report to contain information about preservation notices
Domestic preservation notices
(1) The report must set out, for each criminal law‑enforcement agency:
(a) the relevant statistics about domestic preservation notices that were given by the agency during that year; and
(b) the relevant statistics about revocation notices given by the agency under section 107L during that year.
Foreign preservation notices
(2) If the criminal law‑enforcement agency is the Australian Federal Police, the report must also set out:
(a) the relevant statistics about foreign preservation notices that were given by the agency during that year; and
(b) the relevant statistics about revocation notices given by the agency under section 107R during that year.
162 Report to set out how many applications made and warrants issued
(1) The report must set out, for each criminal law‑enforcement agency:
(a) the relevant statistics about applications for stored communications warrants that the agency made during that year; and
(b) the relevant statistics about telephone applications for stored communications warrants that the agency made during that year; and
(c) the relevant statistics about international assistance applications that the agency made during that year; and
(d) for each international offence for the agency—the offence (if any), under a law of the Commonwealth, a State or a Territory, that is of the same, or a substantially similar, nature to the international offence.
(2) The report must set out:
(a) the relevant statistics about applications for stored communications warrants that were made during that year; and
(b) the relevant statistics about telephone applications for stored communications warrants that were made during that year; and
(ba) the relevant statistics about international assistance applications that were made during that year; and
(c) the relevant statistics about renewal applications made during that year; and
(d) how many stored communications warrants issued on applications made during that year specified conditions or restrictions relating to access to stored communications under the warrants; and
(e) for each international offence for each enforcement agency—the offence (if any), under a law of the Commonwealth, a State or a Territory, that is of the same, or a substantially similar, nature to the international offence.
(3) An international offence, for an enforcement agency, is:
(a) an offence against a law of a foreign country; or
(b) a crime within the jurisdiction of the ICC; or
(c) a War Crimes Tribunal offence;
in respect of which a stored communications warrant was issued as a result of an international assistance application made by the agency during the year.
163 Report to contain information about effectiveness of warrants
The report must set out, for each criminal law‑enforcement agency:
(a) how many arrests were made during that year on the basis of information that was, or included, lawfully accessed information; and
(b) how many proceedings ended during that year that were proceedings in which, according to the records of the agency, lawfully accessed information was given in evidence.
163A Report regarding international requests
The report must set out the number of occasions on which lawfully accessed information or stored communications warrant information was communicated under subsection 139(1) or section 142 to any of the following:
(a) a foreign country;
(b) the International Criminal Court;
(c) a War Crimes Tribunal;
for a purpose connected with an authorisation referred to in paragraph 139(2)(e).
Division 3—Provisions about annual reports
164 Annual reports
(1) The Minister must cause a copy of a report under Division 2 to be laid before each House of the Parliament within 15 sitting days of that House after the report is prepared.
(2) A report under Division 2 must not be made in a manner that is likely to enable the identification of a person.
(3) For the purposes of section 34C of the Acts Interpretation Act 1901, a report that Division 2 requires to be prepared as soon as practicable after 30 June in a calendar year is taken to be a periodic report:
(a) that this Act requires a person to give to the Minister; and
(b) that relates to the administration of Parts 3‑3, 3‑4 and 3‑5 during the year ending on that 30 June.
Part 3‑7—Civil remedies
165 Civil remedies—unlawful access or communication
When section applies
(1) This section applies to an accessing of a stored communication if the access was in contravention of subsection 108(1).
Aggrieved person
(2) For the purposes of this section, a person is an aggrieved person if, and only if:
(a) the person was a party to the communication; or
(b) the communication was made on the person’s behalf.
Access—civil court remedy
(3) If a person (the defendant):
(a) so accessed the communication; or
(b) did an act or thing referred to in subparagraph 108(1)(a)(ii) or (iii) in relation to the access;
the Federal Court of Australia or a court of a State or Territory may, on the application of an aggrieved person, grant the aggrieved person remedial relief in respect of the access by making such orders against the defendant as the court considers appropriate.
Note: Subparagraphs 108(1)(a)(ii) and (iii) deal with the authorisation or enabling of access etc.
Communication—civil court remedy
(4) If:
(a) information was obtained by accessing the communication; and
(b) a person (the defendant) communicated the information to another person in contravention of section 133;
the Federal Court of Australia or a court of a State or Territory may, on the application of an aggrieved person, grant the aggrieved person remedial relief in respect of the communication of the information by making such orders against the defendant as the court considers appropriate.
Access—criminal court remedy
(5) If a court convicts a person (the defendant) of an offence against subsection 108(1) constituted by:
(a) the access; or
(b) the doing of an act or thing referred to in subparagraph 108(1)(a)(ii) or (iii) in relation to the access;
the court may, on the application of an aggrieved person, grant the aggrieved person remedial relief in respect of the access by making such orders against the defendant as the court considers appropriate.
Note: Subparagraphs 108(1)(a)(ii) and (iii) deal with the authorisation or enabling of access etc.
Communication—criminal court remedy
(6) If:
(a) information was obtained by accessing the communication; and
(b) the information was communicated to a person in contravention of section 133; and
(c) a court convicts a person (in this subsection called the defendant) of an offence against section 133 constituted by the communication of the information;
the court may, on the application of an aggrieved person, grant the aggrieved person remedial relief in respect of the communication of the information by making such orders against the defendant as the court considers appropriate.
Orders
(7) Without limiting the orders that may be made under this section against a person (the defendant) in respect of a particular access to or a particular communication of information, a court may make an order of one or more of the following kinds:
(a) an order declaring the access or communication, as the case requires, to have been unlawful;
(b) an order that the defendant pay to the aggrieved person such damages as the court considers appropriate;
(c) an order in the nature of an injunction (including a mandatory injunction);
(d) an order that the defendant pay to the aggrieved person an amount not exceeding the amount that, in the opinion of the court, represents the total gross income derived by the defendant as a result of the access or communication, as the case requires.
Terms etc. of orders
(8) Without limiting the orders that may be made by a court under this section, an order may:
(a) include such provisions as the court considers necessary for the purposes of the order; and
(b) be made either unconditionally or subject to such terms and conditions as the court determines.
Injunctive relief—variation etc.
(9) A court may revoke or vary an order in the nature of an injunction made by the court under this section.
Punitive damages
(10) A reference in paragraph (7)(b) to damages includes a reference to damages in the nature of punitive damages.
Minor irregularities in warrants etc.
(11) Despite subsection (1) of this section, this section does not apply to an accessing that contravenes subsection 108(1) only because of a defect or irregularity (other than a substantial defect or irregularity):
(a) in, or in connection with the issue of, a document purporting to be a warrant; or
(b) in connection with the execution of a warrant, or the purported execution of a document purporting to be a warrant.
166 Limitation periods etc.
Access—civil court remedy
(1) An application under subsection 165(3) for the grant of remedial relief in respect of an access is to be made within 6 years after the access took place.
Communication—civil court remedy
(2) An application under subsection 165(4) for the grant of remedial relief in respect of a communication of information is to be made within 6 years after the communication.
Criminal court remedies
(3) An application under subsection 165(5) or (6) for the grant of remedial relief is not subject to any limitation period, but is to be made as soon as practicable after the conviction concerned.
167 No limitation on other liability
No limitation
(1) This Part does not limit any liability (whether criminal or civil) that a person has under any other provision of this Act or under any other law.
Remedial relief even if defendant convicted of offence
(2) An application under subsection 165(3) or (4) may be made even if the defendant referred to in that subsection has been convicted of an offence under, or arising out of, this Act.
168 Concurrent operation of State and Territory laws
This Part is not intended to exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with this Part.
169 State or Territory courts—jurisdictional limits
This Part does not enable an inferior court of a State or Territory to grant remedial relief of a kind that the court is unable to grant under the law of that State or Territory.
170 Extended meaning of conviction—orders under section 19B of the Crimes Act 1914
A reference in this Part to the conviction of a person of an offence includes a reference to the making of an order under section 19B of the Crimes Act 1914 in relation to a person in respect of an offence.
Note: Section 19B of the Crimes Act 1914 empowers a court that has found a person to have committed an offence to take action without proceeding to record a conviction.
Chapter 4—Access to telecommunications data
Part 4‑1—Permitted access to telecommunications data
Division 1—Outline of Part
171 Outline of Part
(1) Divisions 3, 4 and 4A set out some circumstances when sections 276, 277 and 278 of the Telecommunications Act 1997 do not prohibit a disclosure of information or a document.
Note 1: Division 3 covers the Organisation. Division 4 covers disclosures for the purposes of Australian enforcement agencies. Division 4A covers disclosures for the purposes of foreign law enforcement.
Note 2: Those Divisions do not permit the disclosure of the contents or substance of a communication: see Division 2.
(2) Division 5 sets out some circumstances when sections 276, 277 and 278 of the Telecommunications Act 1997 do not prohibit a use of information or a document.
(3) Division 6 creates offences for certain disclosures and uses of information and documents.
Division 2—General provisions
172 No disclosure of the contents or substance of a communication
Divisions 3, 4 and 4A do not permit the disclosure of:
(a) information that is the contents or substance of a communication; or
(b) a document to the extent that the document contains the contents or substance of a communication.
173 Effect of Divisions 3 to 5
Nothing in Divisions 3 to 5 limits the generality of anything else in those Divisions or in Subdivision A of Division 3 of Part 13 of the Telecommunications Act 1997.
Division 3—The Organisation
174 Voluntary disclosure
(1) Sections 276, 277 and 278 of the Telecommunications Act 1997 do not prohibit a disclosure by a person (the holder) of information or a document to the Organisation if the disclosure is in connection with the performance by the Organisation of its functions.
Limitation
(2) This section does not apply if the Director‑General of Security, the Deputy Director‑General of Security or any other ASIO employee or ASIO affiliate requests the holder to disclose the information or document.
Note: Sections 175 and 176 deal with the disclosure of information or a document in response to authorisations by the Organisation.
175 Authorisations for access to existing information or documents
(1) Sections 276, 277 and 278 of the Telecommunications Act 1997 do not prohibit a disclosure of information or a document if the information or document is covered by an authorisation in force under subsection (2).
Making of authorisation
(2) The following persons (each of whom is an eligible person):
(a) the Director‑General of Security;
(b) the Deputy Director‑General of Security;
(c) ASIO employee or ASIO affiliate covered by an approval in force under subsection (4);
may authorise the disclosure of specified information or specified documents that came into existence before the time the person from whom the disclosure is sought receives notification of the authorisation.
Note: Section 184 deals with notification of authorisations.
(3) The eligible person must not make the authorisation unless he or she is satisfied that the disclosure would be in connection with the performance by the Organisation of its functions.
Approvals
(4) The Director‑General of Security may, by writing, approve ASIO employee or ASIO affiliate for the purposes of paragraph (2)(c).
176 Authorisations for access to prospective information or documents
(1) Sections 276, 277 and 278 of the Telecommunications Act 1997 do not prohibit a disclosure of information or a document if the information or document is covered by an authorisation in force under this section.
Prospective authorisation
(2) The following persons (each of whom is an eligible person):
(a) the Director‑General of Security;
(b) the Deputy Director‑General of Security;
(c) an ASIO employee or ASIO affiliate who holds, or is acting in, a position that is equivalent to, or that is higher than, an SES Band 2 position in the Department;
may authorise the disclosure of specified information or specified documents that come into existence during the period for which the authorisation is in force.
Authorisation for access to existing information or documents may also be sought
(3) The eligible person may, in that authorisation, also authorise the disclosure of specified information or specified documents that came into existence before the time the authorisation comes into force.
Limits on making the authorisation
(4) The eligible person must not make the authorisation unless he or she is satisfied that the disclosure would be in connection with the performance by the Organisation of its functions.
Period for which authorisation is in force
(5) An authorisation under this section:
(a) comes into force at the time the person from whom the disclosure is sought receives notification of the authorisation; and
(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.
Note: Section 184 deals with notification of authorisations.
Revoking the authorisation
(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 Attorney‑General under section 180P that the Director‑General is satisfied that the grounds on which the warrant was issued have ceased to exist.
Note: Section 184 deals with notification of authorisations.
Division 4—Enforcement agencies
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.
Note: See also section 110B (about declarations in relation to the Immigration and Border Protection Department).
(2) The head of an authority or body may request the Minister to declare the authority or body to be an enforcement agency.
(3) The Minister may, by legislative instrument, declare:
(a) an authority or body to be an enforcement agency; and
(b) persons specified, or of a kind specified, in the declaration to be officers of the enforcement agency for the purposes of this Act.
(3A) The Minister may make the declaration whether or not the head of the authority or body has made a request under subsection (2).
(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.
(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.
(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.
(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.
(6) The declaration may be subject to conditions.
(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.
(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.
(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.
(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.
(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.
177 Voluntary disclosure
Enforcement of the criminal law
(1) Sections 276, 277 and 278 of the Telecommunications Act 1997 do not prevent a disclosure by a person (the holder) of information or a document to an enforcement agency if the disclosure is reasonably necessary for the enforcement of the criminal law.
Enforcement of a law imposing a pecuniary penalty or protection of the public revenue
(2) Sections 276 and 277 of the Telecommunications Act 1997 do not prevent a disclosure by a person (the holder) of information or a document to an enforcement agency if the disclosure is reasonably necessary for the enforcement of a law imposing a pecuniary penalty or for the protection of the public revenue.
Limitation
(3) This section does not apply if a relevant staff member of an enforcement agency requests the holder to disclose the information or document.
Note: Sections 178 to 180 deal with the disclosure of information or a document in response to authorisations by an authorised officer of an enforcement agency.
178 Authorisations for access to existing information or documents—enforcement of the criminal law
(1) Sections 276, 277 and 278 of the Telecommunications Act 1997 do not prevent a disclosure of information or a document if the information or document is covered by an authorisation in force under subsection (2).
(2) An authorised officer of an enforcement agency may authorise the disclosure of specified information or specified documents that came into existence before the time the person from whom the disclosure is sought receives notification of the authorisation.
Note: Section 184 deals with notification of authorisations.
(3) The authorised officer must not make the authorisation unless he or she is satisfied that the disclosure is reasonably necessary for the enforcement of the criminal law.
178A Authorisations for access to existing information or documents—locating missing persons
(1) Sections 276, 277 and 278 of the Telecommunications Act 1997 do not prevent a disclosure of information or a document if the information or document is covered by an authorisation in force under subsection (2).
(2) An authorised officer of the Australian Federal Police, or a Police Force of a State, may authorise the disclosure of specified information or specified documents that came into existence before the time the person from whom the disclosure is sought receives notification of the authorisation.
Note: Section 184 deals with notification of authorisations.
(3) The authorised officer must not make the authorisation unless he or she is satisfied that the disclosure is reasonably necessary for the purposes of finding a person who the Australian Federal Police, or a Police Force of a State, has been notified is missing.
179 Authorisations for access to existing information or documents—enforcement of a law imposing a pecuniary penalty or protection of the public revenue
(1) Sections 276 and 277 of the Telecommunications Act 1997 do not prevent a disclosure of information or a document if the information or document is covered by an authorisation in force under subsection (2).
(2) An authorised officer of an enforcement agency may authorise the disclosure of specified information or specified documents that came into existence before the time the person from whom the disclosure is sought receives notification of the authorisation.
Note: Section 184 deals with notification of authorisations.
(3) The authorised officer must not make the authorisation unless he or she is satisfied that the disclosure is reasonably necessary for the enforcement of a law imposing a pecuniary penalty or for the protection of the public revenue.
180 Authorisations for access to prospective information or documents
(1) Sections 276, 277 and 278 of the Telecommunications Act 1997 do not prevent a disclosure of information or a document if the information or document is covered by an authorisation in force under this section.
Prospective authorisation
(2) An authorised officer of a criminal law‑enforcement agency may authorise the disclosure of specified information or specified documents that come into existence during the period for which the authorisation is in force.
Authorisation for access to existing information or documents may also be sought
(3) The authorised officer may, in that authorisation, also authorise the disclosure of specified information or specified documents that came into existence before the time the authorisation comes into force.
Limits on making the authorisation
(4) The authorised officer must not make the authorisation unless he or she is satisfied that the disclosure is reasonably necessary for the investigation of:
(a) a serious offence; or
(b) an offence against a law of the Commonwealth, a State or a Territory that is punishable by imprisonment for at least 3 years.
Period for which authorisation is in force
(6) An authorisation under this section:
(a) comes into force at the time the person from whom the disclosure is sought receives notification of the authorisation; and
(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.
Note: Section 184 deals with notification of authorisations.
Revoking the authorisation
(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
(b) in a case where the authorisation is made under a journalist information warrant—the warrant is revoked under subsection 180W(1).
Note: Section 184 deals with notification of authorisations.
Division 4A—Foreign law enforcement
Subdivision A—Primary disclosures
180A Authorisations for access to existing information or documents—enforcing foreign or international laws
Disclosure to the Australian Federal Police
(1) Sections 276, 277 and 278 of the Telecommunications Act 1997 do not prevent a disclosure of information or a document if the information or document is covered by an authorisation in force under subsection (2).
(2) An authorised officer of the Australian Federal Police may authorise the disclosure of specified information or specified documents that came into existence before the time the person from whom the disclosure is sought receives notification of the authorisation.
Note: Section 184 deals with notification of authorisations.
(3) The authorised officer must not make the authorisation unless he or she is satisfied that the disclosure is reasonably necessary for:
(a) the enforcement of the criminal law of a foreign country; or
(b) an investigation or prosecution of a crime within the jurisdiction of the ICC; or
(c) an investigation or prosecution of a War Crimes Tribunal offence.
Disclosure to a foreign law enforcement agency
(4) If specified information or specified documents are disclosed because of an authorisation given under subsection (2), an authorised officer of the Australian Federal Police may authorise the disclosure of the information or documents so disclosed to a foreign law enforcement agency.
(5) The authorised officer must not make the authorisation unless he or she is satisfied that the disclosure is appropriate in all the circumstances and that the disclosure is reasonably necessary for:
(a) the enforcement of the criminal law of a foreign country; or
(b) an investigation or prosecution of a crime within the jurisdiction of the ICC; or
(c) an investigation or prosecution of a War Crimes Tribunal offence.
180B Authorisations for access to prospective information or documents—enforcing international laws
Disclosure to the Australian Federal Police
(1) Sections 276, 277 and 278 of the Telecommunications Act 1997 do not prevent a disclosure of information or a document if the information or document is covered by an authorisation in force under subsection (2) of this section.
Prospective authorisation
(2) An authorised officer of the Australian Federal Police may authorise the disclosure of specified information or specified documents that come into existence during the period for which the authorisation is in force.
(3) The authorised officer must not make the authorisation unless:
(a) the Attorney‑General has authorised the making of the authorisation under a provision mentioned in an item of the following table; and
(b) the authorised officer is satisfied that:
(i) the disclosure is reasonably necessary for an investigation or proceeding referred to in that table item; and
(ii) the disclosure is appropriate in all the circumstances.
Authorising access to prospective information or documents |
Item | For Attorney‑General authorisations under: | the investigation or proceeding is: |
1 | section 15D of the Mutual Assistance in Criminal Matters Act 1987 | an investigation or proceeding relating to an offence against the law of a foreign country that: (a) is punishable by imprisonment for 3 years or more, imprisonment for life or the death penalty; or (b) involves an act or omission that, if it had occurred in Australia, would be a serious offence |
2 | section 78B of the International Criminal Court Act 2002 | an investigation or proceeding relating to a crime within the jurisdiction of the ICC |
3 | section 34B of the International War Crimes Tribunals Act 1995 | an investigation or proceeding relating to a War Crimes Tribunal offence |
(4) An authorised officer of the Australian Federal Police must revoke the authorisation if he or she is satisfied that the disclosure is no longer required.
Note: Section 184 deals with notification of revocations.
(5) An authorisation under subsection (2):
(a) comes into force at the time the person from whom the disclosure is sought receives notification of the authorisation; and
(b) ceases to be in force at the time specified in the authorisation, which must not be more than 21 days after the day the authorisation is made, or that period as extended under subsection (6), unless it is revoked earlier.
Note: Section 184 deals with notification of authorisations.
Extension of prospective authorisation
(6) The period for which an authorisation under subsection (2) is in force may be extended once only, by an authorised officer of the Australian Federal Police, if the authorised officer is satisfied that the extension is:
(a) reasonably necessary for an investigation or proceeding of a kind referred to in the relevant table item in subsection (3); and
(b) appropriate in all the circumstances.
(7) An extension under subsection (6) must not be for more than 21 days from the day of the extension.
Disclosure to a foreign law enforcement agency
(8) If specified information or specified documents are disclosed because of an authorisation given under subsection (2), an authorised officer of the Australian Federal Police may authorise the disclosure of the information or documents so disclosed to a foreign law enforcement agency if the authorised officer is satisfied that the disclosure is:
(a) reasonably necessary for an investigation or proceeding of a kind referred to in the relevant table item in subsection (3); and
(b) appropriate in all the circumstances.
(9) An authorised officer must not make more than one authorisation a day under subsection (8).
Subdivision B—Secondary disclosures
180C Authorisations to disclose information or documents—enforcing foreign or international laws
(1) If specified information or specified documents are disclosed because of an authorisation given under Division 4, other than because of an authorisation under section 178A (missing persons), an authorised officer of the Australian Federal Police may authorise the disclosure of the information or documents so disclosed to a foreign law enforcement agency.
(2) The authorised officer must not make the authorisation unless he or she is satisfied that the disclosure is appropriate in all the circumstances and that the disclosure is reasonably necessary for:
(a) the enforcement of the criminal law of a foreign country; or
(b) an investigation or prosecution of a crime within the jurisdiction of the ICC; or
(c) an investigation or prosecution of a War Crimes Tribunal offence.
180D Authorisations to disclose information or documents—enforcement of the criminal law
(1) If specified information or specified documents are disclosed because of an authorisation given under this Division, an authorised officer of the Australian Federal Police may authorise the following:
(a) the disclosure of the information or documents to the Organisation or an enforcement agency;
(b) the use of the information or documents by the Australian Federal Police.
(2) The authorised officer must not make the authorisation unless he or she is satisfied that:
(a) in the case of a disclosure to the Organisation—the disclosure is reasonably necessary for the performance by the Organisation of its functions; and
(b) in the case of a disclosure to an enforcement agency—the disclosure is reasonably necessary:
(i) for the enforcement of the criminal law; or
(ia) for the purposes of Division 105A of the Criminal Code (post‑sentence orders); or
(ib) for the purposes of Division 395 of the Criminal Code (community safety orders); or
(ii) for the enforcement of a law imposing a pecuniary penalty; or
(iii) for the protection of the public revenue; and
(c) in the case of a use by the Australian Federal Police—the use is reasonably necessary:
(i) for the enforcement of the criminal law; or
(ia) for the purposes of Division 105A of the Criminal Code (post‑sentence orders); or
(ib) for the purposes of Division 395 of the Criminal Code (community safety orders); or
(ii) for the enforcement of a law imposing a pecuniary penalty; or
(iii) for the protection of the public revenue; and
(d) in any case—the disclosure or use is appropriate in all the circumstances.
Subdivision C—Conditions of disclosure to foreign law enforcement agencies
180E Disclosing information etc. to foreign countries or foreign law enforcement agencies
(1) A person must not disclose information or a document in accordance with an authorisation under section 180A, 180B or 180C to a foreign country or foreign law enforcement agency unless the disclosure is subject to the following conditions:
(a) that the information will only be used for the purposes for which the foreign country or foreign law enforcement agency requested the information;
(b) that any document or other thing containing the information will be destroyed when it is no longer required for those purposes;
(c) in the case of information or a document disclosed under section 180B—any other condition determined, in writing, by the Attorney‑General.
(2) A determination made under paragraph (1)(c) is not a legislative instrument.
Division 4B—Privacy to be considered when making authorisations
180F Authorised officers to consider privacy
Before making an authorisation under Division 4 or 4A in relation to the disclosure or use of information or documents, the authorised officer considering making the authorisation must be satisfied on reasonable grounds that any interference with the privacy of any person or persons that may result from the disclosure or use is justifiable and proportionate, having regard to the following matters:
(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;
(a) the likely relevance and usefulness of the information or documents;
(b) the reason why the disclosure or use concerned is proposed to be authorised.
Division 4C—Journalist information warrants
Subdivision A—The requirement for journalist information warrants
180G The Organisation
(1) An eligible person (within the meaning of subsection 175(2) or 176(2), as the case requires) must not make an authorisation under 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.
(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.
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.
(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:
(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.
(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.
Subdivision B—Issuing journalist information warrants to the Organisation
180J Requesting a journalist information warrant
(1) The Director‑General of Security may request the Attorney‑General to issue a journalist information warrant in relation to a particular person.
(2) The request must specify the facts and other grounds on which the Director‑General considers it necessary that the warrant be issued.
180K Further information
(1) The Attorney‑General may require the Director‑General of Security to give to the Attorney‑General, within the period specified in the requirement, further information in connection with a request under this Subdivision.
(2) If the Director‑General breaches the requirement, the Attorney‑General may:
(a) refuse to consider the request; or
(b) refuse to take any action, or any further action, in relation to the request.
180L Issuing a journalist information warrant
(1) After considering a request under section 180J, the Attorney‑General must:
(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.
(2) The Attorney‑General must not issue a journalist information warrant unless the Attorney‑General 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 Attorney‑General considers relevant.
(3) A journalist information warrant issued under this section may specify conditions or restrictions relating to making authorisations under the authority of the warrant.
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:
(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 Attorney‑General 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 Attorney‑General 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 Attorney‑General; 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.
(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).
Authorisation to issue a warrant under this section
(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.
(4) The Ministers who may orally give an authorisation are:
(a) the Attorney‑General; or
(b) if the Director‑General is satisfied that the Attorney‑General is not readily available or contactable—any of the following Ministers:
(i) the Prime Minister;
(ia) the most senior Minister administering this Act;
(ii) the Defence Minister;
(iii) the Foreign Affairs Minister.
(5) The authorisation may specify conditions or restrictions relating to issuing the warrant.
(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.
Duration of a warrant under this section
(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 Attorney‑General may revoke the warrant at any time before the end of the specified period.
Copies of warrant and other documents
(8) Immediately after issuing a journalist information warrant under this section, the Director‑General must give the Attorney‑General:
(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.
(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
(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.
(10) Subsection (9) has effect despite subsection 185D(1).
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 Attorney‑General may revoke the warrant at any time before the end of the specified period.
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 Attorney‑General accordingly; and
(b) takes such steps as are necessary to ensure that the making of authorisations under the authority of the warrant is discontinued.
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.
(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
(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).
(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.
(4) A nomination under subsection (3) is not a legislative instrument.
(5) The application may be made in writing or in any other form.
Note: The Electronic Transactions Act 1999 deals with giving information in writing by means of an electronic communication.
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.
(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.
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.
(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.
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) 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
(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.
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.
(2) A journalist information warrant issued under this Subdivision may specify conditions or restrictions relating to making authorisations under the authority of the warrant.
(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.
(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.
(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.
180V Entry into force of a journalist information warrant
A journalist information warrant issued under this Subdivision comes into force when it is issued.
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.
(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.
Subdivision D—Miscellaneous
180X Public Interest Advocates
(1) The Prime Minister shall declare, in writing, one or more persons to be Public Interest Advocates.
(2) A Public Interest Advocate may make submissions:
(a) to the Attorney‑General 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.
(3) The regulations may prescribe matters relating to the performance of the role of a Public Interest Advocate.
(4) A declaration under subsection (1) is not a legislative instrument.
Division 5—Uses of telecommunications data connected with provision of access
181 Uses of telecommunications data connected with provision of access
Section 276, 277 or 278 of the Telecommunications Act 1997 does not prohibit a use by a person of information or a document if:
(a) the use is made for the purposes of, or in connection with, a disclosure of the information or document by the person; and
(b) because of Division 3, 4 or 4A of this Part, the disclosure is not prohibited by that section.
Division 6—Disclosure/use offences
181A Disclosure/use offences: authorisations under Division 3
Disclosures
(1) A person commits an offence if:
(a) the person discloses information; and
(b) the information is about any of the following:
(i) whether an authorisation under Division 3 has been, or is being, sought;
(ii) the making of such an authorisation;
(iii) the existence or non‑existence of such an authorisation;
(iv) the revocation of such an authorisation;
(v) the notification of such a revocation.
Penalty: Imprisonment for 2 years.
(2) A person commits an offence if:
(a) the person discloses a document; and
(b) the document consists (wholly or partly) of any of the following:
(i) an authorisation under Division 3;
(ii) the revocation of such an authorisation;
(iii) the notification of such a revocation.
Penalty: Imprisonment for 2 years.
(3) Paragraphs (1)(a) and (2)(a) do not apply to a disclosure of information or a document if:
(a) the disclosure is for the purposes of the authorisation, revocation or notification concerned; or
(b) the disclosure is reasonably necessary:
(i) to enable the Organisation to perform its functions; or
(ia) to enable a person to comply with his or her obligations under section 185D or 185E; or
(ii) to enforce the criminal law; or
(iii) to enforce a law imposing a pecuniary penalty; or
(iv) to protect the public revenue; or
(c) the disclosure is:
(i) to an IGIS official for the purpose of exercising a power, or performing a function or duty, as an IGIS official; or
(ii) by an IGIS official in connection with the IGIS official exercising powers, or performing functions or duties, as an IGIS official.
Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).
Uses
(4) A person commits an offence if:
(a) the person uses information; and
(b) the information is about any of the following:
(i) whether an authorisation under Division 3 has been, or is being, sought;
(ii) the making of such an authorisation;
(iii) the existence or non‑existence of such an authorisation;
(iv) the revocation of such an authorisation;
(v) the notification of such a revocation.
Penalty: Imprisonment for 2 years.
(5) A person commits an offence if:
(a) the person uses a document; and
(b) the document consists (wholly or partly) of any of the following:
(i) an authorisation under Division 3;
(ii) the revocation of such an authorisation;
(iii) the notification of such a revocation.
Penalty: Imprisonment for 2 years.
(6) Paragraphs (4)(a) and (5)(a) do not apply to a use of information or a document if:
(a) the use is for the purposes of the authorisation, revocation or notification concerned; or
(b) the use is reasonably necessary:
(i) to enable the Organisation to perform its functions; or
(ia) to enable a person to comply with his or her obligations under section 185D or 185E; or
(ii) to enforce the criminal law; or
(iii) to enforce a law imposing a pecuniary penalty; or
(iv) to protect the public revenue; or
(c) the use is by an IGIS official in connection with the IGIS official exercising powers, or performing functions or duties, as an IGIS official.
Note: A defendant bears an evidential burden in relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal Code).
181B Disclosure/use offences: certain authorisations under Division 4
Disclosures
(1) A person commits an offence if:
(a) the person discloses information; and
(b) the information is about any of the following:
(i) whether an authorisation under Division 4 (other than under section 178A) has been, or is being, sought;
(ii) the making of such an authorisation;
(iii) the existence or non‑existence of such an authorisation;
(iv) the revocation of such an authorisation;
(v) the notification of such a revocation.
Penalty: Imprisonment for 2 years.
(2) A person commits an offence if:
(a) the person discloses a document; and
(b) the document consists (wholly or partly) of any of the following:
(i) an authorisation under Division 4 (other than under section 178A);
(ii) the revocation of such an authorisation;
(iii) the notification of such a revocation.
Penalty: Imprisonment for 2 years.
(3) Paragraphs (1)(a) and (2)(a) do not apply to a disclosure of information or a document if:
(a) the disclosure is for the purposes of the authorisation, revocation or notification concerned; or
(b) the disclosure is reasonably necessary:
(i) to enable the Organisation to perform its functions; or
(ia) to enable a person to comply with his or her obligations under section 185D or 185E; or
(ii) to enforce the criminal law; or
(iia) for the purposes of Division 105A of the Criminal Code (post‑sentence orders); or
(iib) for the purposes of Division 395 of the Criminal Code (community safety orders); or
(iii) to enforce a law imposing a pecuniary penalty; or
(iv) to protect the public revenue; or
(c) the disclosure is:
(i) to an IGIS official for the purpose of exercising a power, or performing a function or duty, as an IGIS official; or
(ii) by an IGIS official in connection with the IGIS official exercising powers, or performing functions or duties, as an IGIS official.
Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).
Uses
(4) A person commits an offence if:
(a) the person uses information; and
(b) the information is about any of the following:
(i) whether an authorisation under Division 4 (other than under section 178A) has been, or is being, sought;
(ii) the making of such an authorisation;
(iii) the existence or non‑existence of such an authorisation;
(iv) the revocation of such an authorisation;
(v) the notification of such a revocation.
Penalty: Imprisonment for 2 years.
(5) A person commits an offence if:
(a) the person uses a document; and
(b) the document consists (wholly or partly) of any of the following:
(i) an authorisation under Division 4 (other than under section 178A);
(ii) the revocation of such an authorisation;
(iii) the notification of such a revocation.
Penalty: Imprisonment for 2 years.
(6) Paragraphs (4)(a) and (5)(a) do not apply to a use of information or a document if:
(a) the use is for the purposes of the authorisation, revocation or notification concerned; or
(b) the use is reasonably necessary:
(ia) to enable a person to comply with his or her obligations under section 185D or 185E; or
(i) to enforce the criminal law; or
(iaa) for the purposes of Division 105A of the Criminal Code (post‑sentence orders); or
(iab) for the purposes of Division 395 of the Criminal Code (community safety orders); or
(ii) to enforce a law imposing a pecuniary penalty; or
(iii) to protect the public revenue; or
(c) the use is by an IGIS official in connection with the IGIS official exercising powers, or performing functions or duties, as an IGIS official.
Note: A defendant bears an evidential burden in relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal Code).
182 Secondary disclosure/use offence: disclosures under Division 4
(1) A person commits an offence if:
(a) information or a document is disclosed to the person as permitted by Division 4 or 4A; and
(b) the person discloses or uses the information or document.
Penalty: Imprisonment for 2 years.
Exempt disclosures
(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
(iiia) for the purposes of Division 105A of the Criminal Code (post‑sentence orders); or
(iiib) for the purposes of Division 395 of the Criminal Code (community safety orders); 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 exercising a power, or performing a function or duty, as an IGIS official; or
(ii) by an IGIS official in connection with the IGIS official exercising powers, or performing functions or duties, as an IGIS official.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).
(2A) Paragraph (1)(b) does not apply to a disclosure of missing person information in relation to a missing person if:
(a) the disclosure is reasonably necessary for the purposes of finding the missing person; or
(b) the information is disclosed to the person who notified the Australian Federal Police, or a Police Force of a State, of the missing person and:
(i) the missing person consented to the disclosure; or
(ii) the missing person is unable to consent, and the disclosure is reasonably necessary to prevent a threat to the missing person’s health, life or safety; or
(iii) the missing person is dead.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2A) (see subsection 13.3(3) of the Criminal Code).
Exempt uses
(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
(ii) for the enforcement of the criminal law; or
(iia) for the purposes of Division 105A of the Criminal Code (post‑sentence orders); or
(iib) for the purposes of Division 395 of the Criminal Code (community safety orders); 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, as an IGIS official.
Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).
(4) Paragraph (1)(b) does not apply to a use of missing person information in relation to a missing person if the use is reasonably necessary for the purposes of finding the missing person.
Note: A defendant bears an evidential burden in relation to the matter in subsection (4) (see subsection 13.3(3) of the Criminal Code).
(4A) Paragraph (1)(b) does not apply to a disclosure or use of information or a document if the disclosure or use is permitted by section 180C or 180D.
Note: A defendant bears an evidential burden in relation to the matter in subsection (4A) (see subsection 13.3(3) of the Criminal Code).
(5) In this Act:
missing person information, in relation to a missing person, means information or a document that is disclosed under section 178A (locating missing persons) in relation to the person who the Australian Federal Police, or a Police Force of a State, has been notified is missing.
non‑missing person information means information or a document that is disclosed as permitted by Division 4 or 4A, but not under section 178A (locating missing persons).
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.
Penalty: Imprisonment for 2 years.
(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.
Penalty: Imprisonment for 2 years.
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
(iva) for the purposes of Division 105A of the Criminal Code (post‑sentence orders); or
(ivb) for the purposes of Division 395 of the Criminal Code (community safety orders); 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 exercising a power, or performing a function or duty, as an IGIS official; or
(ii) by an IGIS official in connection with the IGIS official exercising powers, or performing functions or duties, as an IGIS official; 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, as an IGIS official.
Note: A defendant bears an evidential burden in relation to the matter in this section (see subsection 13.3(3) of the Criminal Code).
Part 4‑2—Procedural requirements relating to authorisations
183 Form of authorisations and notifications
(1) The following:
(a) an authorisation under Division 3, 4 or 4A of Part 4‑1;
(b) the notification of such an authorisation;
(c) the revocation of such an authorisation;
(d) the notification of such a revocation;
must:
(e) be in written form or in electronic form (for example, email); and
(f) comply with such requirements as are determined under subsection (2).
(2) A Communications Access Coordinator may, by legislative instrument, determine requirements for the purposes of paragraph (1)(f).
(3) A Communications Access Coordinator must consult the ACMA and the Information Commissioner in relation to matters that relate to the privacy functions (within the meaning of the Australian Information Commissioner Act 2010) before a determination is made under subsection (2).
184 Notification of authorisations or revocations
The Organisation
(1) If a person makes an authorisation under Division 3 of Part 4‑1, an ASIO employee or ASIO affiliate must notify the person from whom the disclosure is sought.
(2) If, under subsection 176(6), a person revokes an authorisation, an ASIO employee or ASIO affiliate must notify the person who was notified of the authorisation.
Enforcement agencies
(3) If an authorised officer of an enforcement agency makes an authorisation under Division 4 of Part 4‑1, a relevant staff member of the enforcement agency must notify the person from whom the disclosure is sought.
(4) If, under subsection 180(7), an authorised officer of a criminal law‑enforcement agency revokes an authorisation, a relevant staff member of the enforcement agency must notify the person who was notified of the authorisation.
Authorised officers of the Australian Federal Police
(5) If an authorised officer of the Australian Federal Police makes an authorisation under subsection 180A(2) or 180B(2), or extends the period for which an authorisation is in force under subsection 180B(6), a relevant staff member of the Australian Federal Police must notify the person from whom the disclosure is sought.
(6) If, under subsection 180B(4), an authorised officer of the Australian Federal Police revokes an authorisation, a relevant staff member of the Australian Federal Police must notify the person who was notified of the authorisation.
185 Retention of authorisations
(1) The head (however described) of an enforcement agency must retain an authorisation made under Division 4 of Part 4‑1 by an authorised officer of the enforcement agency for the period of 3 years beginning on the day the authorisation is made.
(2) The Commissioner of Police must retain an authorisation made under Division 4A of Part 4‑1 by an authorised officer of the Australian Federal Police for the period of 3 years beginning on the day the authorisation is made.
(3) This section does not limit subsection 187N(3).
185A Evidentiary certificates relating to acts by carriers
(1) The following:
(a) the Managing Director of a carrier or a body corporate of which the carrier is a subsidiary;
(b) the secretary of a carrier or a body corporate of which the carrier is a subsidiary;
(c) an employee of a carrier authorised in writing for the purposes of this paragraph by a person referred to in paragraph (a) or (b);
may issue a written certificate signed by him or her setting out such facts as he or she considers relevant with respect to acts or things done by, or in relation to, employees of the carrier in order to enable the disclosure of information or a document covered by an authorisation in force under a provision of Division 3 or 4 of Part 4‑1.
(2) A document purporting to be a certificate issued under subsection (1) and purporting to be signed by a person referred to in paragraph (a), (b) or (c) of that subsection:
(a) is to be received in evidence in an exempt proceeding without further proof; and
(b) is, in an exempt proceeding, conclusive evidence of the matters stated in the document.
(3) For the purposes of this section, the question whether a body corporate is a subsidiary of another body corporate is to be determined in the same manner as the question is determined under the Corporations Act 2001.
185B Evidentiary certificates relating to acts by the Organisation
(1) The Director‑General of Security or the Deputy Director‑General of Security may issue a written certificate signed by him or her setting out such facts as he or she considers relevant with respect to:
(a) anything done by an ASIO employee or ASIO affiliate in connection with the disclosure of information or a document covered by an authorisation in force under a provision of Division 3 or 4 of Part 4‑1; or
(b) anything done by an ASIO employee or ASIO affiliate in connection with:
(i) the communication by a person to another person of information, or information contained in a document, covered by such an authorisation; or
(ii) the making use of such information; or
(iii) the making of a record of such information; or
(iv) the custody of a record of such information; or
(v) the giving in evidence of such information.
(2) A document purporting to be a certificate issued under subsection (1) by the Director‑General of Security or the Deputy Director‑General of Security and to be signed by him or her:
(a) is to be received in evidence in an exempt proceeding without further proof; and
(b) is, in an exempt proceeding, prima facie evidence of the matters stated in the document.
185C Evidentiary certificates relating to acts by enforcement agencies
(1) A certifying officer of an enforcement agency may issue a written certificate signed by him or her setting out such facts as he or she considers relevant with respect to:
(a) anything done by an officer or staff member of the agency in connection with the disclosure of information or a document covered by an authorisation in force under a provision of Division 3 or 4 of Part 4‑1; or
(b) anything done by an officer or staff member of the agency in connection with:
(i) the communication by a person to another person of information, or information contained in a document, covered by such an authorisation; or
(ii) the making use of such information; or
(iii) the making of a record of such information; or
(iv) the custody of a record of such information; or
(v) the giving in evidence of such information.
(2) A document purporting to be a certificate issued under subsection (1) by a certifying officer of an enforcement agency and to be signed by him or her:
(a) is to be received in evidence in an exempt proceeding without further proof; and
(b) is, in an exempt proceeding, prima facie evidence of the matters stated in the document.
185D Notification etc. of authorisations intended to identify media sources
The Organisation
(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 Attorney‑General must, as soon as practicable, cause the Parliamentary Joint Committee on Intelligence and Security to be notified of the issuing of the warrant.
(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.
(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.
(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.
Enforcement agencies
(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.
(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.
(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.
(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.
185E Reports on access to retained data
The Organisation
(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.
(2) The Parliamentary Joint Committee on Intelligence and Security may request a briefing from the Inspector‑General on the authorisation or authorisations.
Australian Federal Police
(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.
(4) The Parliamentary Joint Committee on Intelligence and Security may request a briefing from the Ombudsman on the authorisation or authorisations.
186 Report to Minister
(1) As soon as practicable, and in any event within 3 months, after each 30 June, the head (however described) of an enforcement agency must give the Minister a written report that relates to the year ending on that 30 June and that sets out:
(a) the number of authorisations made under section 178 by an authorised officer of the enforcement agency during that year; and
(aa) the number of authorisations made under section 178A by an authorised officer of the enforcement agency during that year; and
(b) the number of authorisations made under section 179 by an authorised officer of the enforcement agency during that year; and
(c) for a criminal law‑enforcement agency—the number of authorisations made under section 180 by an authorised officer of the enforcement agency during that year; and
(ca) if the enforcement agency is the Australian Federal Police—the number of authorisations made under sections 180A, 180B, 180C and 180D by an authorised officer of the Australian Federal Police during that year; and
(cb) if the enforcement agency is the Australian Federal Police, and information or documents were disclosed, under an authorisation referred to in paragraph (ca), by an authorised officer of the Australian Federal Police during that year to one or more foreign countries:
(i) the name of each such country; and
(ii) the number of disclosures under such authorisations; and
(d) any other matter requested by the Minister in relation to those authorisations; 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.
(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).
(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).
(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 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.
(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).
(1E) The Minister may, by legislative instrument, declare kinds of information that are to be set out in the report under subsection (1).
(2) The Minister must prepare a report that contains the information set out in each report under subsection (1), other than the information referred to in paragraph (1)(cb). The report may contain any other information the Minister considers appropriate.
(3) The Minister must cause a copy of a report under subsection (2) to be laid before each House of the Parliament within 15 sitting days of that House after the day on which the report was completed.
(4) A report under this section must not be made in a manner that is likely to enable the identification of a person.
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):
(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 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);
(e) 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);
(f) 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;
(g) 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);
(h) each evidentiary certificate issued under section 185C;
(i) each report given to the Minister under section 186;
(j) documents and other materials of a kind prescribed under subsection (2) of this section.
(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.
(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.
(4) Subsection (3) does not affect the operation of section 185.
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.
(1A) If:
(a) the performance of a function, or the exercise of a power, conferred by Part 15 of the Telecommunications Act 1997 is in connection with:
(i) a stored communications warrant; or
(ii) an authorisation under Division 3, 4 or 4A of Part 4‑1; and
(b) an enforcement agency has records that relate to the performance of that function or the exercise of that power;
the Ombudsman may inspect those records in order to determine the extent of compliance with Part 15 of the Telecommunications Act 1997 by the agency and its officers.
(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
(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.
(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.
(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.
(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).
(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.
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:
(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.
(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.
(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.
Penalty for an offence against this subsection: Imprisonment for 6 months.
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
(b) be contrary to the public interest; or
(c) might tend to incriminate the person or make the person liable to a penalty.
(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.
(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.
(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).
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.
(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.
(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.
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.
(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.
(3) The Ombudsman may receive, from an inspecting authority, information relevant to the performance of the Ombudsman’s functions under this Act.
186G Delegation by Ombudsman
(1) The Ombudsman may delegate:
(a) to an APS employee responsible to the Ombudsman; or
(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.
(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.
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.
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.
(2) The report under subsection (1) must be given to the Minister as soon as practicable after the end of the financial year.
(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.
(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.
(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.
Note: 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.
(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.
