Telecommunications (Interception and Access) Act 1979

(1) This section sets out the meaning of the following 2 important concepts used in this Chapter:

(a) interception capability (relating to obligations under Part 5‑3);

(b) delivery capability (relating to obligations under Part 5‑5).

These concepts do not overlap.

Interception capability

(2) In this Chapter, interception capability, in relation to a particular kind of telecommunications service that involves, or will involve, the use of a telecommunications system, means the capability of that kind of service or of that system to enable:

(a) a communication passing over the system to be intercepted; and

(b) lawfully intercepted information to be transmitted to the delivery points applicable in respect of that kind of service.

Delivery capability

(3) In this Chapter, delivery capability, in relation to a particular kind of telecommunications service that involves, or will involve, the use of a telecommunications system, means the capability of that kind of service or of that system to enable lawfully intercepted information to be delivered to interception agencies from the delivery points applicable in respect of that kind of service.

Part 5‑1A—Data retention

Division 1—Obligation to keep information and documents

187A Service providers must keep certain information and documents

(1) A person (a service provider) who operates a service to which this Part applies (a relevant service) must keep, or cause to be kept, in accordance with section 187BA and for the period specified in section 187C:

(a) information of a kind specified in or under section 187AA; or

(b) documents containing information of that kind;

relating to any communication carried by means of the service.

Note 1: Subsection (3) sets out the services to which this Part applies.

Note 2: Section 187B removes some service providers from the scope of this obligation, either completely or in relation to some services they operate.

Note 3: Division 3 provides for exemptions from a service provider’s obligations under this Part.

(3) This Part applies to a service if:

(a) it is a service for carrying communications, or enabling communications to be carried, by means of guided or unguided electromagnetic energy or both; and

(b) it is a service:

(i) operated by a carrier; or

(ii) operated by an internet service provider (within the meaning of the Online Safety Act 2021; or

(iii) of a kind for which a declaration under subsection (3A) is in force; and

(c) the person operating the service owns or operates, in Australia, infrastructure that enables the provision of any of its relevant services;

but does not apply to a broadcasting service (within the meaning of the Broadcasting Services Act 1992).

(3A) The Minister may, by legislative instrument, declare a service to be a service to which this Part applies.

(3B) A declaration under subsection (3A):

(a) comes into force when it is made, or on such later day as is specified in the declaration; and

(b) ceases to be in force at the end of the period of 40 sitting days of a House of the Parliament after the declaration comes into force.

(3C) If a Bill is introduced into either House of the Parliament that includes an amendment of subsection (3), the Minister:

(a) must refer the amendment to the Parliamentary Joint Committee on Intelligence and Security for review; and

(b) must not in that referral specify, as the period within which the Committee is to report on its review, a period that will end earlier than 15 sitting days of a House of the Parliament after the introduction of the Bill.

(4) This section does not require a service provider to keep, or cause to be kept:

(a) information that is the contents or substance of a communication; or

Note: This paragraph puts beyond doubt that service providers are not required to keep information about telecommunications content.

(b) information that:

(i) states an address to which a communication was sent on the internet, from a telecommunications device, using an internet access service provided by the service provider; and

(ii) was obtained by the service provider only as a result of providing the service; or

Note: This paragraph puts beyond doubt that service providers are not required to keep information about subscribers’ web browsing history.

(i) that is of a kind referred to in paragraph (3)(a); and

(ii) that is operated by another person using the relevant service operated by the service provider;

or a document to the extent that the document contains such information; or

Note: This paragraph puts beyond doubt that service providers are not required to keep information or documents about communications that pass “over the top” of the underlying service they provide, and that are being carried by means of other services operated by other service providers.

(d) information that the service provider is required to delete because of a determination made under section 99 of the Telecommunications Act 1997, or a document to the extent that the document contains such information; or

(e) information about the location of a telecommunications device that is not information used by the service provider in relation to the relevant service to which the device is connected.

(5) Without limiting subsection (1), for the purposes of this section:

(a) an attempt to send a communication by means of a relevant service is taken to be the sending of a communication by means of the service, if the attempt results in:

(i) a connection between the telecommunications device used in the attempt and another telecommunications device; or

(ii) an attempted connection between the telecommunications device used in the attempt and another telecommunications device; or

(iii) a conclusion being drawn, through the operation of the service, that a connection cannot be made between the telecommunications device used in the attempt and another telecommunications device; and

(b) an untariffed communication by means of a relevant service is taken to be a communication by means of the service.

(6) To avoid doubt, if information that subsection (1) requires a service provider to keep in relation to a communication is not created by the operation of a relevant service, subsection (1) requires the service provider to use other means to create the information, or a document containing the information.

187AA Information to be kept

(1) The following table sets out the kinds of information that a service provider must keep, or cause to be kept, under subsection 187A(1):

Kinds of information to be kept
Item	Topic Column 1	Description of information Column 2
1	The subscriber of, and accounts, services, telecommunications devices and other relevant services relating to, the relevant service	The following: (a) any information that is one or both of the following: (i) any name or address information; (ii) any other information for identification purposes; relating to the relevant service, being information used by the service provider for the purposes of identifying the subscriber of the relevant service; (b) any information relating to any contract, agreement or arrangement relating to the relevant service, or to any related account, service or device; (c) any information that is one or both of the following: (i) billing or payment information; (ii) contact information; relating to the relevant service, being information used by the service provider in relation to the relevant service; (d) any identifiers relating to the relevant service or any related account, service or device, being information used by the service provider in relation to the relevant service or any related account, service or device; (e) the status of the relevant service, or any related account, service or device.
2	The source of a communication	Identifiers of a related account, service or device from which the communication has been sent by means of the relevant service.
3	The destination of a communication	Identifiers of the account, telecommunications device or relevant service to which the communication: (a) has been sent; or (b) has been forwarded, routed or transferred, or attempted to be forwarded, routed or transferred.
4	The date, time and duration of a communication, or of its connection to a relevant service	The date and time (including the time zone) of the following relating to the communication (with sufficient accuracy to identify the communication): (a) the start of the communication; (b) the end of the communication; (c) the connection to the relevant service; (d) the disconnection from the relevant service.
5	The type of a communication or of a relevant service used in connection with a communication	The following: (a) the type of communication; Examples: Voice, SMS, email, chat, forum, social media. (b) the type of the relevant service; Examples: ADSL, Wi‑Fi, VoIP, cable, GPRS, VoLTE, LTE. (c) the features of the relevant service that were, or would have been, used by or enabled for the communication. Examples: Call waiting, call forwarding, data volume usage. Note: This item will only apply to the service provider operating the relevant service: see paragraph 187A(4)(c).
6	The location of equipment, or a line, used in connection with a communication	The following in relation to the equipment or line used to send or receive the communication: (a) the location of the equipment or line at the start of the communication; (b) the location of the equipment or line at the end of the communication. Examples: Cell towers, Wi‑Fi hotspots.

(2) The Minister may, by legislative instrument, make a declaration modifying (including by adding, omitting or substituting) the table in subsection (1), or that table as previously modified under this subsection.

(3) A declaration under subsection (2):

(a) comes into force when it is made, or on such later day as is specified in the declaration; and

(b) ceases to be in force at the end of the period of 40 sitting days of a House of the Parliament after the declaration comes into force.

(4) If a Bill is introduced into either House of the Parliament that includes an amendment of subsection 187A(4) or subsection (1) or (5) of this section, the Minister:

(a) must refer the amendment to the Parliamentary Joint Committee on Intelligence and Security for review; and

(5) For the purposes of items 2, 3, 4 and 6 of the table in subsection (1) and any modifications of those items under subsection (2), 2 or more communications that together constitute a single communications session are taken to be a single communication.

187B Certain service providers not covered by this Part

(1) Subsection 187A(1) does not apply to a service provider (other than a carrier that is not a carriage service provider) in relation to a relevant service that it operates if:

(a) the service:

(i) is provided only to a person’s immediate circle (within the meaning of section 23 of the Telecommunications Act 1997); or

(ii) is provided only to places that, under section 36 of that Act, are all in the same area; and

(b) the service is not subject to a declaration under subsection (2) of this section.

(2) A Communications Access Coordinator may declare that subsection 187A(1) applies in relation to a relevant service that a service provider operates.

(2A) Before a declaration is made, a Communications Access Coordinator may consult the Privacy Commissioner.

(3) In considering whether to make a declaration, a Communications Access Coordinator must have regard to:

(a) the interests of law enforcement and national security; and

(b) the objects of the Telecommunications Act 1997; and

(ba) the objects of the Privacy Act 1988; and

(bb) any submissions made by the Privacy Commissioner because of the consultation under subsection (2A); and

(4) The declaration must be in writing.

(5) A declaration made under subsection (2) is not a legislative instrument.

(6) As soon as practicable after a declaration is made under subsection (2), a Communications Access Coordinator must give written notice of the declaration to the Minister.

(7) As soon as practicable after receiving the notice under subsection (6), the Minister must give written notice of the declaration to the Parliamentary Joint Committee on Intelligence and Security.

187BA Ensuring the confidentiality of information

A service provider must protect the confidentiality of information that, or information in a document that, the service provider must keep, or cause to be kept, under section 187A by:

(a) encrypting the information; and

(b) protecting the information from unauthorised interference or unauthorised access.

187C Period for keeping information and documents

(1) The period for which a service provider must keep, or cause to be kept, information or a document under section 187A is:

(a) if the information is about, or the document contains information about, a matter of a kind described in paragraph (a) or (b) in column 2 of item 1 of the table in subsection 187AA(1)—the period:

(i) starting when the information or document came into existence; and

(ii) ending 2 years after the closure of the account to which the information or document relates; or

(b) otherwise—the period:

(i) starting when the information or document came into existence; and

(ii) ending 2 years after it came into existence.

(2) However, the regulations may prescribe that, in relation to a specified matter of a kind described in paragraph (a) or (b) in column 2 of item 1 of the table in subsection 187AA(1), the period under subsection (1) of this section is the period referred to in paragraph (1)(b) of this section.

(3) This section does not prevent a service provider from keeping information or a document for a period that is longer than the period provided under this section.

Note: Division 3 provides for reductions in periods specified under this section.

Division 2—Data retention implementation plans

187D Effect of data retention implementation plans

While there is in force a data retention implementation plan for a relevant service operated by a service provider:

(a) the service provider must comply with the plan in relation to communications carried by means of that service; but

(b) the service provider is not required to comply with subsection 187A(1) (or section 187BA or 187C) in relation to those communications.

187E Applying for approval of data retention implementation plans

(1) A service provider may apply to a Communications Access Coordinator for approval of a data retention implementation plan for one or more relevant services operated by the service provider.

(2) The plan must specify, in relation to each such service:

(a) an explanation of the current practices for keeping, and ensuring the confidentiality of, information and documents that section 187A would require to be kept, if the plan were not in force; and

(b) details of the interim arrangements that the service provider proposes to be implemented, while the plan is in force, for keeping, and ensuring the confidentiality of, such information and documents (to the extent that the information and documents will not be kept in compliance with section 187A (and sections 187BA and 187C)); and

(c) the day by which the service provider will comply with section 187A (and sections 187BA and 187C) in relation to all such information and documents, except to the extent that any decisions under Division 3 apply.

(3) The day specified under paragraph (2)(c) must not be later than the day on which the plan would, if approved, cease to be in force under section 187H in relation to the service.

(4) The plan must also specify:

(a) any relevant services, operated by the service provider, that the plan does not cover; and

(b) the contact details of the officers or employees of the service provider in relation to the plan.

187F Approval of data retention implementation plans

(1) If, under section 187E, a service provider applies for approval of a data retention implementation plan, a Communications Access Coordinator must:

(a) approve the plan and notify the service provider of the approval; or

(b) give the plan back to the service provider with a written request for the service provider to amend the plan to take account of specified matters.

(2) Before making a decision under subsection (1), the Coordinator must take into account:

(a) the desirability of achieving substantial compliance with section 187A (and sections 187BA and 187C) as soon as practicable; and

(b) the extent to which the plan would reduce the regulatory burden imposed on the service provider by this Part; and

(c) if, at the time the application is received, the service provider is contravening section 187A (or section 187BA or 187C) in relation to one or more services covered by the application—the reasons for the contravention; and

(d) the interests of law enforcement and national security; and

(e) the objects of the Telecommunications Act 1997; and

(f) any other matter that the Coordinator considers relevant.

(3) If a Communications Access Coordinator does not, within 60 days after the day a Communications Access Coordinator receives the application:

(a) make a decision on the application, and

(b) communicate to the applicant the decision on the application;

a Communications Access Coordinator is taken, at the end of that period of 60 days, to have made the decision that the service provider applied for, and to have notified the service provider accordingly.

(4) A decision that is taken under subsection (3) to have been made in relation to a service provider that applied for the decision has effect only until a Communications Access Coordinator makes, and communicates to the service provider, a decision on the application.

187G Consultation with agencies and the ACMA

(1) As soon as practicable after receiving an application under section 187E to approve a data retention implementation plan (the original plan), a Communications Access Coordinator must:

(a) give a copy of the plan to the enforcement agencies and security authorities that, in the opinion of a Communications Access Coordinator, are likely to be interested in the plan; and

(b) invite each such enforcement agency or security authority to provide comments on the plan to a Communications Access Coordinator.

A Communications Access Coordinator may give a copy of the plan to the ACMA.

Request for amendment of original plan

(2) If:

(a) a Communications Access Coordinator receives a comment from an enforcement agency or security authority requesting an amendment of the original plan; and

(b) a Communications Access Coordinator considers the request to be a reasonable one;

a Communications Access Coordinator:

(c) must request that the service provider make the amendment within 30 days (the response period) after receiving the comment or summary; and

(d) may give the service provider a copy of the comment or a summary of the comment.

Response to request for amendment of original plan

(3) The service provider must respond to a request for an amendment of the original plan either:

(a) by indicating its acceptance of the request, by amending the original plan appropriately and by giving the amended plan to a Communications Access Coordinator within the response period; or

(b) by indicating that it does not accept the request and providing its reasons for that non‑acceptance.

The ACMA’s role

(4) If the service provider indicates that it does not accept a request for an amendment of the original plan, a Communications Access Coordinator must:

(a) refer the request and the service provider’s response to the ACMA; and

(b) request the ACMA to determine whether any amendment of the original plan is required.

(5) The ACMA must then:

(a) determine in writing that no amendment of the original plan is required in response to the request for the amendment; or

(b) if, in the opinion of the ACMA:

(i) the request for the amendment is a reasonable one; and

(ii) the service provider’s response to the request for the amendment is not reasonable;

determine in writing that the original plan should be amended in a specified manner and give a copy of the determination to the service provider.

Coordinator to approve amended plan or to refuse approval

(6) A Communications Access Coordinator must:

(a) if, on receipt of a determination under paragraph (5)(b), the service provider amends the original plan to take account of that determination and gives the amended plan to a Communications Access Coordinator—approve the plan as amended, and notify the service provider of the approval; or

(b) otherwise—refuse to approve the plan, and notify the service provider of the refusal.

ACMA determination not a legislative instrument

(7) A determination made under subsection (5) is not a legislative instrument.

187H When data retention implementation plans are in force

(1) A data retention implementation plan for a relevant service operated by a service provider:

(a) comes into force when a Communications Access Coordinator notifies the service provider of the approval of the plan; and

(b) ceases to be in force in relation to that service:

(i) if the service provider was operating the service at the commencement of this Part—at the end of the implementation phase for this Part; or

(ii) if the service provider was not operating the service at the commencement of this Part—at the end of the period of 18 months starting on the day the service provider started to operate the service after that commencement.

(2) The implementation phase for this Part is the period of 18 months starting on the commencement of this Part.

187J Amending data retention implementation plans

(1) If a service provider’s data retention implementation plan is in force, it may be amended only if:

(a) the service provider applies to a Communications Access Coordinator for approval of the amendment, and a Communications Access Coordinator approves the amendment; or

(b) a Communications Access Coordinator makes a request to the service provider for the amendment to be made, and the service provider agrees to the amendment.

(2) Section 187F applies in relation to approval of the amendment under paragraph (1)(a) as if the application for approval of the amendment were an application under section 187E for approval of a data retention implementation plan.

(3) An amendment of a data retention implementation plan:

(a) comes into force when:

(i) if paragraph (1)(a) applies—a Communications Access Coordinator notifies the service provider of the approval of the amendment; or

(ii) if paragraph (1)(b) applies—the service provider notifies a Communications Access Coordinator of the service provider’s agreement to the amendment; but

(b) does not effect when the plan ceases to be in force under paragraph 187H(1)(b).

Division 3—Exemptions

187K Communications Access Coordinator may grant exemptions or variations

Decision to exempt or vary

(1) A Communications Access Coordinator may:

(a) exempt a specified service provider from the obligations imposed on the service provider under this Part, either generally or in so far as they relate to a specified kind of relevant service; or

(b) vary the obligations imposed on a specified service provider under this Part, either generally or in so far as they relate to a specified kind of relevant service; or

(c) vary, in relation to a specified service provider, a period specified in section 187C, either generally or in relation to information or documents that relate to a specified kind of relevant service.

A variation must not impose obligations that would exceed the obligations to which a service provider would otherwise be subject under sections 187A and 187C.

(2) The decision must be in writing.

(3) The decision may be:

(a) unconditional; or

(b) subject to such conditions as are specified in the decision.

(4) A decision made under subsection (1) is not a legislative instrument.

Effect of applying for exemption or variation

(5) If a service provider applies in writing to a Communications Access Coordinator for a particular decision under subsection (1) relating to the service provider:

(a) a Communications Access Coordinator:

(i) must give a copy of the application to the enforcement agencies and security authorities that, in the opinion of a Communications Access Coordinator, are likely to be interested in the application; and

(ii) may give a copy of the application to the ACMA; and

(b) if a Communications Access Coordinator does not, within 60 days after the day a Communications Access Coordinator receives the application:

(i) make a decision on the application, and

(ii) communicate to the applicant the decision on the application;

a Communications Access Coordinator is taken, at the end of that period of 60 days, to have made the decision that the service provider applied for.

(6) A decision that is taken under paragraph (5)(b) to have been made in relation to a service provider that applied for the decision has effect only until a Communications Access Coordinator makes, and communicates to the service provider, a decision on the application.

Matters to be taken into account

(7) Before a Communications Access Coordinator makes a decision under subsection (1) in relation to a service provider, the Coordinator must take into account:

(a) the interests of law enforcement and national security; and

(b) the objects of the Telecommunications Act 1997; and

(d) the service provider’s costs, or anticipated costs, of complying with this Part; and

(e) any alternative data retention or information security arrangements that the service provider has identified.

(8) The Coordinator may take into account any other matter he or she considers relevant.

187KA Review of exemption or variation decisions

(1) A service provider may apply in writing to the ACMA for review of a decision under subsection 187K(1) relating to the service provider.

(2) The ACMA must:

(a) confirm the decision; or

(b) substitute for that decision another decision that could have been made under subsection 187K(1).

A substituted decision under paragraph (b) has effect (other than for the purposes of this section) as if it were a decision of a Communications Access Coordinator under subsection 187K(1).

(3) Before considering its review of the decision under subsection 187K(1), the ACMA must give a copy of the application to:

(a) a Communications Access Coordinator; and

(b) any enforcement agencies and security authorities that were given, under subparagraph 187K(5)(a)(i), a copy of the application for the decision under review; and

(c) any other enforcement agencies and security authorities that, in the opinion of the ACMA, are likely to be interested in the application.

Matters to be taken into account

(4) Before making a decision under subsection (2) in relation to a service provider, the ACMA must take into account:

(a) the interests of law enforcement and national security; and

(b) the objects of the Telecommunications Act 1997; and

(d) the service provider’s costs, or anticipated costs, of complying with this Part; and

(e) any alternative data retention or information security arrangements that the service provider has identified.

(5) The ACMA may take into account any other matter it considers relevant.

Division 4—Miscellaneous

187KB Commonwealth may make a grant of financial assistance to service providers

(1) The Commonwealth may make a grant of financial assistance to a service provider for the purpose of assisting the service provider to comply with the service provider’s obligations under this Part.

(2) The terms and conditions on which that financial assistance is granted are to be set out in a written agreement between the Commonwealth and the service provider.

(3) An agreement under subsection (2) may be entered into on behalf of the Commonwealth by the Minister.

187L Confidentiality of applications

(1) If a Communications Access Coordinator receives a service provider’s application under section 187E for approval of a data retention implementation plan, or application for a decision under subsection 187K(1), the Coordinator must:

(a) treat the application as confidential; and

(b) ensure that it is not disclosed to any other person or body (other than another Communications Access Coordinator, the ACMA, an enforcement agency or a security authority) without the written permission of the service provider.

(1A) If the ACMA receives a service provider’s application under section 187KA for review of a decision under subsection 187K(1), the ACMA must:

(a) treat the application as confidential; and

(b) ensure that it is not disclosed to any other person or body (other than a Communications Access Coordinator, an enforcement agency or a security authority) without the written permission of the service provider.

(2) The ACMA, a Communications Access Coordinator, an enforcement agency or a security authority must, if it receives under subsection 187G(1), paragraph 187K(5)(a) or subsection 187KA(3) a copy of a service provider’s application:

(a) treat the copy as confidential; and

(b) ensure that it is not disclosed to any other person or body (other than a Communications Access Coordinator) without the written permission of the service provider.

187LA Application of the Privacy Act 1988

(1) The Privacy Act 1988 applies in relation to a service provider, as if the service provider were an organisation within the meaning of that Act, to the extent that the activities of the service provider relate to retained data.

(2) Information that is kept under this Part, or information that is in a document kept under this Part is taken, for the purposes of the Privacy Act 1988, to be personal information about an individual if the information relates to:

(a) the individual; or

(b) a communication to which the individual is a party.

187M Pecuniary penalties and infringement notices

Subsection 187A(1) and paragraph 187D(a) are civil penalty provisions for the purposes of the Telecommunications Act 1997.

Note: Parts 31 and 31B of the Telecommunications Act 1997 provide for pecuniary penalties and infringement notices for contraventions of civil penalty provisions.

187N Review of operation of this Part

(1) The Parliamentary Joint Committee on Intelligence and Security must review the operation of this Part.

(1A) The review:

(a) must start on or before the second anniversary of the end of the implementation phase; and

(b) must be concluded on or before the third anniversary of the end of the implementation phase.

(2) The Committee must give the Minister a written report of the review.

(3) Until the review is completed, the head (however described) of an enforcement agency must keep:

(a) all of the documents that he or she is required to retain under section 185; and

(b) all of the information that he or she is required, by paragraphs 186(1)(e) to (k), to include in a report under subsection 186(1);

relating to the period starting on the commencement of this Part and ending when the review is completed.

(4) Until the review is completed, the Director‑General of Security must keep:

(a) all of the authorisations made under Division 3 of Part 4‑1; and

(b) all of the information that he or she is required, by paragraphs 94(2A)(c) to (j) of the Australian Security Intelligence Organisation Act 1979, to include in a report referred to in subsection 94(1) of that Act;

relating to the period starting on the commencement of this Part and ending when the review is completed.

(5) Subsections (3) and (4) do not limit any other obligation to keep information under this Act or another law.

187P Annual reports

(1) The Minister must, as soon as practicable after each 30 June, cause to be prepared a written report on the operation of this Part during the year ending on that 30 June.

(1A) Without limiting the matters that may be included in a report under subsection (1), it must include information about:

(a) the costs to service providers of complying with this Part; and

(b) the use of data retention implementation plans approved under Division 2 of this Part.

(2) A report under subsection (1) must be included in the report prepared under subsection 186(2) relating to the year ending on that 30 June.

(3) A report under subsection (1) must not be made in a manner that is likely to enable the identification of a person.

Part 5‑2—Delivery points

188 Delivery points

(1) Each carrier must:

(a) nominate, in respect of a particular kind of telecommunications service of that carrier and in respect of each interception agency, at least one place in Australia as the location of a point from which lawfully intercepted information can most conveniently be transmitted in relation to that interception agency; and

(b) inform a Communications Access Coordinator of the place or places nominated for each interception agency.

Note 1: The nominated location becomes a delivery point: see the definition of delivery point in subsection 5(1).

Note 2: The definition of carrier in subsection 5(1) includes carriage service providers.

Note 3: Delivery points are significant for the interception capability obligations in Part 5‑3 and for the delivery capability obligations in Part 5‑5.

Disagreement over delivery points

(2) A Communications Access Coordinator may, at any time, notify a carrier that an interception agency does not agree to the location of a point nominated under subsection (1) by that carrier in respect of a particular kind of telecommunications service and of that interception agency.

(3) Upon being so notified, the carrier must nominate another location of a point in respect of that kind of telecommunications service and of that interception agency and inform a Communications Access Coordinator.

Note: The nominated location becomes a delivery point: see the definition of delivery point in subsection 5(1).

(4) If the location of a point nominated under subsection (3) is still unsatisfactory to the interception agency, a Communications Access Coordinator must:

(a) inform the carrier to that effect; and

(b) refer the disagreement to the ACMA for a determination under subsection (5).

(5) The ACMA, after hearing the views of the carrier and the views of the interception agency concerning the best location of a point in relation to that kind of telecommunications service and that interception agency, must determine the location of a point for the purposes of this section.

Note: The determined location becomes a delivery point: see the definition of delivery point in subsection 5(1).

Factors to be considered in determining delivery points

(6) In determining the location of a delivery point, the carrier and the interception agency or, failing agreement, the ACMA, must have regard to:

(a) the configuration of the kind of telecommunications service in respect of which the delivery point is required to be decided; and

(b) the relative costs to the carrier and the interception agency of any particular point that is chosen as that delivery point; and

(d) the reasonable commercial requirements of the carrier; and

(e) the location of any delivery points already existing in relation to that interception agency or other interception agencies.

(7) It is not a requirement that a place where an interception takes place is the place nominated as the location of a delivery point if, in accordance with the criteria set out in subsection (6), another more suitable location exists.

Changing delivery points

(8) If:

(a) the location of a delivery point has been determined by the ACMA in respect of a particular kind of telecommunications service and of an interception agency; and

(b) as a result of a material change in the circumstances of the carrier concerned, the location of that point becomes unsuitable;

the carrier:

(c) may nominate another place as the location of that delivery point in respect of that kind of telecommunications service and of that interception agency; and

(d) must inform a Communications Access Coordinator of the place so nominated.

Note: The nominated location becomes a delivery point: see the definition of delivery point in subsection 5(1).

(9) If:

(a) the location of a delivery point has been determined by the ACMA in respect of a particular kind of telecommunications service and of an interception agency; and

(b) as a result of a material change in the circumstances of the interception agency, the location of that point becomes unsuitable; and

(c) the interception agency, either directly or through a Communications Access Coordinator, requests the carrier to nominate another place as the location of that delivery point;

the carrier must:

(d) nominate another place as the location of that delivery point in respect of that kind of telecommunications service and of that interception agency; and

(e) inform a Communications Access Coordinator of the place nominated.

Note: The nominated location becomes a delivery point: see the definition of delivery point in subsection 5(1).

(10) Subsections (2) to (7) apply in relation to a nomination under subsection (8) or (9) as if it were a nomination under subsection (1).

Part 5‑3—Interception capability

Division 1—Obligations

189 Minister may make determinations

(1) The Minister may, by legislative instrument, make determinations in relation to interception capabilities applicable to a specified kind of telecommunications service that involves, or will involve, the use of a telecommunications system.

(2) A determination:

(a) must specify an international standard or guidelines (the international standard), or the relevant part of the international standard, on which the determination is based; and

(b) must provide for interception capability by adopting, applying or incorporating the whole or a part of the international standard, with only such modifications as are necessary to facilitate the application of the standard or the relevant part of the standard in Australia (including any transitional arrangement in relation to an existing kind of telecommunications service that might be required); and

(3) For the purposes of subsection (2), the international standard specified in a determination:

(a) must deal primarily with the requirements of interception agencies in relation to the interception of communications passing over a telecommunications network and related matters; and

(b) may be a part of an international agreement or arrangement or a proposed international agreement or arrangement.

Matters to be taken into account

(4) Before making a determination under subsection (1), the Minister must take into account:

(a) the interests of law enforcement and national security; and

(b) the objects of the Telecommunications Act 1997; and

(5) The Minister may take into account any other matter the Minister considers relevant.

190 Obligations of persons covered by a determination

(1) If a determination under section 189 applies to a particular kind of telecommunications service that involves, or will involve, the use of a telecommunications system, each carrier supplying that kind of service must comply with the determination.

Note: The definition of carrier in subsection 5(1) includes carriage service providers.

(2) Without limiting subsection (1), if a carrier is required to have interception capability in relation to a particular kind of telecommunications service under the determination, the carrier is required to ensure that the capability is developed, installed and maintained.

Note 1: A person may be exempted from the requirements of this section under a provision of Division 2.

Note 2: The cost of this capability is to be borne by the carriers: see Division 2 of Part 5‑6.

191 Obligations of persons not covered by a determination in relation to a kind of telecommunications service

(1) Each carrier supplying a particular kind of telecommunications service that is not covered by any determination under section 189 but that involves, or will involve, the use of a telecommunications system must ensure that the kind of service or the system has the capability to:

(a) enable a communication passing over the system to be intercepted in accordance with an interception warrant; and

(b) transmit lawfully intercepted information to the delivery points applicable in respect of that kind of service.

Note: The definition of carrier in subsection 5(1) includes carriage service providers.

(2) Without limiting subsection (1), the obligation under that subsection includes the obligation to ensure that the capability is developed, installed and maintained.

Note 1: A person may be exempted from the requirements of this section under a provision of Division 2.

Note 2: The cost of this capability is to be borne by the carriers: see Division 2 of Part 5‑6.

Division 2—Exemptions

192 Communications Access Coordinator may grant exemptions

(1) A Communications Access Coordinator may exempt a specified person from all or any of the obligations imposed on the person under Division 1 in so far as those obligations relate to a specified kind of telecommunications service.

(2) The exemption must be in writing.

(3) The exemption may be:

(a) unconditional; or

(b) subject to such conditions as are specified in the exemption.

(4) An exemption given under subsection (1) is not a legislative instrument.

(5) If:

(a) a person applies in writing to a Communications Access Coordinator for an exemption under subsection (1) from all the obligations, or from particular obligations, imposed on the person under Division 1 in so far as those obligations relate to a specified kind of telecommunications service; and

(b) a Communications Access Coordinator does not make, and communicate to the applicant, a decision granting, or refusing to grant, the exemption within 60 days after the day on which a Communications Access Coordinator receives the application;

a Communications Access Coordinator is taken, at the end of that period of 60 days, to have granted an exemption to the applicant from the obligations to which the application relates in so far as those obligations relate to that kind of telecommunications service.

(6) An exemption that is taken under subsection (5) to have been granted to a person who applied for an exemption under subsection (1) has effect only until a Communications Access Coordinator makes, and communicates to the person, a decision on the application.

Matters to be taken into account

(7) Before a Communications Access Coordinator gives an exemption under subsection (1), the Coordinator must take into account:

(a) the interests of law enforcement and national security; and

(b) the objects of the Telecommunications Act 1997.

(8) The Coordinator may take into account any other matter he or she considers relevant.

193 ACMA may grant exemptions for trial services

(1) The ACMA may exempt a specified person from all or any of the obligations imposed on the person under Division 1 in so far as those obligations relate to a kind of telecommunications service that is a trial service.

(2) The ACMA must not grant an exemption unless the ACMA, after consulting any interception agencies that the ACMA considers appropriate, is satisfied that the exemption is unlikely to create a risk to national security or law enforcement.

(3) The exemption must be in writing.

(4) The exemption may be:

(a) unconditional; or

(b) subject to such conditions as are specified in the exemption.

(5) An exemption given under subsection (1) is not a legislative instrument.

Part 5‑4—Interception capability plans

195 Nature of an interception capability plan

(1) An interception capability plan (IC plan) of a carrier or nominated carriage service provider is a written instrument that complies with subsections (2) and (3).

Matters to be included in the instrument

(2) The instrument must set out:

(a) a statement of the policies of the carrier or provider in relation to interception generally and of its strategies for compliance with its legal obligation to provide interception capabilities in relation to a particular kind of telecommunications service that involves, or will involve, the use of a telecommunications system; and

(b) a statement of the compliance by the carrier or provider with that legal obligation; and

(c) a statement of any relevant developments in the business of the carrier or provider that are proposed within the period of 5 years from the start of the plan and that, if implemented, are likely to affect those interception capabilities; and

(d) a statement of the locations at which communications passing over a telecommunications system are intercepted or proposed to be intercepted by the carrier or provider; and

(e) a list of employees of the carrier or provider with responsibility for interception and other related matters; and

(f) the matters determined by the Minister under subsection (4).

Approval of instrument

(3) The instrument must be approved by the chief executive officer (however described) of the carrier or provider or by a person authorised in writing by that officer for the purposes of this subsection to approve the instrument.

Ministerial determination

(4) The Minister may, by legislative instrument, determine matters for the purposes of paragraph (2)(f).

(5) The Minister must consult the ACMA before making a determination under subsection (4).

IC plans are not legislative instruments

(6) An instrument made under subsection (1) is not a legislative instrument.

196 Time for giving IC plans by carriers

(1) A carrier must give an IC plan to a Communications Access Coordinator by:

(a) each 1 July; or

(b) if a Communications Access Coordinator agrees to a later day instead of a particular 1 July—that later day.

Note: If the business plans of the carrier change, the carrier may be required to give a Communications Access Coordinator another IC plan under section 201.

(2) A Communications Access Coordinator must inform the ACMA of any agreement under paragraph (1)(b).

Further rule for future carriers

(3) If the carrier became a carrier on a day (the start day) after the commencement of this section, the carrier must also give an IC plan to a Communications Access Coordinator within 90 days after the start day.

197 Time for giving IC plans by nominated carriage service providers

(1) A nominated carriage service provider must give an IC plan to a Communications Access Coordinator by:

(a) each 1 July; or

(b) if a Communications Access Coordinator agrees to a later day instead of a particular 1 July—that later day.

Note: If the business plans of the nominated carriage service provider change, the provider may be required to give a Communications Access Coordinator another IC plan under section 201.

(2) A Communications Access Coordinator must inform the ACMA of any agreement under paragraph (1)(b).

Further rule for future nominated carriage service providers

(3) If the carriage service provider became a nominated carriage service provider on a day (the start day) after the commencement of this section, the provider must also give an IC plan to a Communications Access Coordinator within 90 days after the start day.

Ministerial declaration

(4) For the purposes of this Part and Part 5‑4A, the Minister may, by writing, declare a carriage service provider to be a nominated carriage service provider.

(5) A declaration made under subsection (4) is not a legislative instrument.

198 Consideration of IC plans

(1) If a carrier or a nominated carriage service provider gives a Communications Access Coordinator an IC plan under section 196, 197 or 201, or an amended IC plan under this section, a Communications Access Coordinator must, within 60 days of the plan being received:

(a) approve the plan and notify the carrier or provider of the approval; or

(b) give the plan back to the carrier or provider with a written request for the carrier or provider to give a Communications Access Coordinator an amended IC plan to take account of specified matters.

Consultation with interception agencies and the ACMA

(2) As soon as practicable after receiving an IC plan (the original plan) under section 196, 197 or 201, a Communications Access Coordinator must:

(a) give a copy of the plan to:

(i) the interception agencies that, in the opinion of a Communications Access Coordinator, are likely to be interested in the plan; and

(ii) the ACMA; and

(b) invite each such interception agency to provide comments on the plan to a Communications Access Coordinator.

Request for amendment of original plan

(3) If:

(a) a Communications Access Coordinator receives a comment from an interception agency requesting an amendment of the original plan; and

(b) a Communications Access Coordinator considers the request to be a reasonable one;

a Communications Access Coordinator must:

(d) request that the carrier or provider respond to the comment or summary within the period (the response period) of 30 days of receiving the comment or summary.

Response to request for amendment of original plan

(4) The carrier or provider must respond to a request for an amendment of the original plan either:

(a) by indicating its acceptance of the request, by amending the original plan appropriately and by giving the amended plan to a Communications Access Coordinator within the response period; or

(b) by indicating that it does not accept the request and providing its reasons for that non‑acceptance.

The ACMA’s role

(5) If the carrier or provider indicates that it does not accept a request for an amendment of the original plan, a Communications Access Coordinator must:

(a) refer the request and the carrier’s or provider’s response to the ACMA; and

(b) request the ACMA to determine whether any amendment of the original plan is required.

(6) The ACMA must then:

(a) determine in writing that no amendment of the original plan is required in response to the request for the amendment; or

(b) if, in the opinion of the ACMA:

(i) the request for the amendment is a reasonable one; and

(ii) the carrier’s or provider’s response to the request for the amendment is not reasonable;

determine in writing that the original plan should be amended in a specified manner and give a copy of the determination to the carrier or provider.

Amendment of original plan

(7) On receipt of a determination under paragraph (6)(b), the carrier or provider must:

(a) amend the original plan to take account of that determination; and

(b) give the amended plan to a Communications Access Coordinator.

ACMA determination not a legislative instrument

(8) A determination made under subsection (6) is not a legislative instrument.

199 Commencement of IC plans

An IC plan of a carrier or nominated carriage service provider:

(a) comes into force on the day the carrier or provider is notified by a Communications Access Coordinator that the plan has been approved; and

(b) continues in force until the day the carrier or provider is notified by a Communications Access Coordinator that another IC plan of the carrier or provider has been approved.

200 Compliance with IC plans

During the period that an IC plan of a carrier or nominated carriage service provider is in force, the carrier or provider must ensure that its business activities are consistent with the plan.

201 Consequences of changed business plans

(1) If, because of changes to the business plans of a carrier or nominated carriage service provider, an IC plan given by that carrier or provider ceases, during the period before another such IC plan is due to be given, to constitute an adequate IC plan of that carrier or provider, the carrier or provider must:

(a) prepare a new IC plan having regard to those changed business plans; and

(b) give the new IC plan to a Communications Access Coordinator as soon as practicable.

Note: The new IC plan is subject to consideration in accordance with section 198.

(2) Subsection (1) applies only if the change in business plans has, or is likely to have, a material adverse effect on the ability of the carrier or provider to comply with its obligations under Part 5‑3.

202 Confidential treatment of IC plans

Once a Communications Access Coordinator, the ACMA or an interception agency receives an IC plan of a carrier or nominated carriage service provider, the Coordinator, the ACMA or the interception agency:

(a) must treat the plan as confidential; and

(b) must ensure that it is not disclosed to any person or body not referred to in this section without the written permission of the carrier or provider.

Part 5‑4A—Requirement arising from proposed changes

202A Purpose of Part

The purpose of this Part is:

(a) to require carriers and nominated carriage service providers to give notice of the particulars of any change that is proposed in relation to a telecommunications service or a telecommunications system, whose implementation may affect the capacity of the carrier or provider to comply with its obligations under:

(i) this Act; or

(ii) section 313 of the Telecommunications Act 1997; and

(b) to allow a Communications Access Coordinator to notify agencies of such proposed changes.

202B Carrier or provider to notify of proposed change

(1) This section applies if, at any time, a carrier or a nominated carriage service provider becomes aware that the implementation by the carrier or provider of a change that is proposed to a telecommunications service or a telecommunications system is likely to have a material adverse effect on the capacity of the carrier or provider to comply with its obligations under:

(a) this Act; or

(b) section 313 of the Telecommunications Act 1997.

(2) A change to a telecommunications service or a telecommunications system includes (but is not limited to) the following:

(a) the carrier or carriage service provider providing one or more new telecommunication services;

(b) the carrier or carriage service provider changing the location of notifiable equipment (including moving equipment outside Australia);

(c) the carrier or carriage service provider procuring notifiable equipment (including procuring equipment that is located outside Australia);

(d) the carrier or carriage service provider entering into outsourcing arrangements:

(i) to have all or part of the telecommunication services provided for the carrier or provider; or

(ii) to have all or part of the provision of telecommunication services managed for the carrier or provider; or

(iii) to have all or some information to which section 276 of the Telecommunications Act 1997 applies in relation to the carrier or provider, managed for the carrier or provider;

(e) the carrier or carriage service provider entering into arrangements to have all or some information to which section 276 of the Telecommunications Act 1997 applies in relation to the carrier or provider accessed by persons outside Australia.

(3) The carrier or provider must notify a Communications Access Coordinator, in writing, of its intention to implement the proposed change.

(4) A notification provided under subsection (3) must include a description of the proposed change.

(5) After notifying a Communications Access Coordinator of a proposed change, the carrier or provider may implement the change if the carrier or provider has not been notified in writing by a Communications Access Coordinator within 30 days after the day the carrier or provider notifies a Communications Access Coordinator of the proposed change.

(6) If:

(a) a Communications Access Coordinator notifies the carrier or provider in writing within 30 days after the day the carrier or provider notifies a Communications Access Coordinator of the proposed change; and

(b) within 30 days after a Communications Access Coordinator so notifies the carrier or provider, a Communications Access Coordinator makes a determination under section 203 that applies to the carrier or provider;

the carrier or provider must not implement the proposed change until the carrier or provider has complied with the determination.

(7) To avoid doubt, subsection (6) does not prevent a Communications Access Coordinator from making a determination under section 203, that applies to the carrier or provider, more than 30 days after a Communications Access Coordinator first notifies the carrier or provider in writing as mentioned in paragraph (6)(a).

202C Communications Access Coordinator may notify agencies

(1) After a Communications Access Coordinator has been notified by a carrier or nominated carriage service provider of an intention to implement a proposed change, a Communications Access Coordinator may notify agencies that are likely to be interested of the proposed change.

(2) On receiving notification from a carrier or provider of an intention to implement a proposed change, a Communications Access Coordinator, and each agency that receives notification of the proposed change, must treat the proposed change as confidential.

Part 5‑5—Delivery capability

203 Communications Access Coordinator may make determinations

(1) A Communications Access Coordinator may, by writing, make determinations in relation to delivery capabilities applicable in relation to:

(a) a specified kind of telecommunications service that involves, or will involve, the use of a telecommunications system and that is supplied by one or more specified carriers; and

(b) one or more specified interception agencies.

Note 1: The definition of carrier in subsection 5(1) includes carriage service providers.

Note 2: For specification by class, see subsection 33(3AB) of the Acts Interpretation Act 1901.

Note 3: A determination may make different provision with respect to different matters or different classes of matters (see subsection 33(3A) of the Acts Interpretation Act 1901).

(2) A determination under subsection (1) must relate to all or any of the following:

(a) the format in which lawfully intercepted information is to be delivered to an interception agency from the delivery point in respect of a kind of telecommunications service and of that interception agency;

(b) the place to which, and manner in which, that information is to be delivered;

(3) A Communications Access Coordinator must consult the ACMA before a determination is made under subsection (1).

(4) A determination made under subsection (1) is not a legislative instrument.

204 Obligations of persons covered by a determination

(1) If a determination under section 203 applies:

(a) to a particular kind of telecommunications service that involves, or will involve, the use of a telecommunications system; and

(b) to a carrier;

the carrier must comply with the determination.

Note: The definition of carrier in subsection 5(1) includes carriage service providers.

(2) Without limiting subsection (1), if a carrier is required to have delivery capability in relation to a particular kind of telecommunications service under the determination, the carrier is required to ensure that the capability is developed, installed and maintained.

Note: The cost of this capability is to be borne by the interception agencies: see Division 3 of Part 5‑6.

205 Obligations of persons not covered by a determination in relation to a kind of telecommunications service

(1) Each carrier supplying a particular kind of telecommunications service that is not covered by any determination under section 203 but that involves, or will involve, the use of a telecommunications system must ensure that the kind of service or the system has a delivery capability.

Note: The definition of carrier in subsection 5(1) includes carriage service providers.

(2) Without limiting subsection (1), the obligation under that subsection includes the obligation to ensure that the capability is developed, installed and maintained.

Note: The cost of this capability is to be borne by the interception agencies: see Division 3 of Part 5‑6.

Part 5‑6—Allocation of costs

Division 1—Outline of Part

206 Outline of Part

(1) Division 2 provides that the cost of developing, installing and maintaining an interception capability imposed on a carrier under Part 5‑3 is to be borne by the carrier.

(2) Division 3 provides that the cost of developing, installing and maintaining a delivery capability imposed on a carrier under Part 5‑5 is to be borne by the interception agencies.

Note: This Part does not deal with the allocation of costs in relation to carriers complying with authorisations under Division 3 or 4 of Part 4‑1. Section 314 of the Telecommunications Act 1997 deals with this matter.

Division 2—Interception capability

207 Costs to be borne by the carriers

The capital and ongoing costs of developing, installing and maintaining a capability imposed on a carrier under section 190 or 191 in respect of a particular kind of telecommunications service are to be borne by the carrier.

Note: The definition of carrier in subsection 5(1) includes carriage service providers.

Division 3—Delivery capability

208 Costs to be borne by the interception agencies

The capital and ongoing costs, worked out in accordance with section 209, of developing, installing and maintaining a delivery capability imposed on a carrier under Part 5‑5 in respect of a particular kind of telecommunications service are to be borne by the interception agency concerned.

Note: The definition of carrier in subsection 5(1) includes carriage service providers.

209 Working out costs of delivery capabilities

(1) Each carrier who is obliged to ensure the development, installation and maintenance of a delivery capability must ensure that the capability is developed, installed and maintained on such terms and conditions:

(a) as are agreed in writing between the carrier and the interception agency concerned; or

(b) in the absence of such an agreement—as are determined in writing by the ACMA.

(2) The terms and conditions on which a carrier is to provide a delivery capability must be consistent with the following principles:

(a) the principle that the most cost effective means of ensuring the development, installation and maintenance of that capability is employed;

(b) the principle that the carrier is to incur the costs (whether of a capital nature or otherwise) relating to the development, installation and maintenance of that capability;

(c) the principle that the carrier may, over time, recover from an interception agency such of those costs as are required, under section 208, to be borne by that interception agency.

(3) Nothing in subsection (2) prevents a carrier from entering into an agreement with more than one interception agency.

(4) The agreement should also provide that if the working out of the costs to a particular interception agency of developing, installing and maintaining a delivery capability is the subject of a disagreement between the carrier and that interception agency:

(a) the interception agency may request the ACMA to arbitrate the matter; and

(b) if it does so, those costs are to be as determined by the ACMA.

(5) The regulations may make provision in relation to the conduct of an arbitration by the ACMA under this section.

(6) The existence of a cost dispute in relation to a delivery capability does not affect the obligations of the carrier in respect of that capability while that dispute is being resolved.

(7) If, as a result of the arbitration of a cost dispute between the carrier and an interception agency, the ACMA concludes that a lesser rate of charge would have been available, the carrier:

(a) must allow the interception agency credit for any costs already charged to the extent that they were worked out at a rate that exceeds that lesser rate; and

(b) must adjust its means of working out future costs;

to take account of that conclusion.

(8) For the purposes of this section, any reference in this section to terms and conditions agreed between a carrier and an interception agency includes a reference to terms and conditions agreed between the carrier and:

(a) in the case of an interception agency of a State—the State, on behalf of the interception agency; and

(b) in the case of an interception agency of the Commonwealth—the Commonwealth, on behalf of the interception agency.

(9) A determination made under paragraph (1)(b) is not a legislative instrument.

210 Examination of lower cost options

(1) In undertaking an arbitration under section 209, the ACMA may on its own initiative or at the request of an interception agency, by notice in writing given to a carrier, require the carrier:

(a) to examine, at the expense of the carrier, the possibility of a lower cost option than the one designated by the carrier for providing a delivery capability; and

(b) to report to the ACMA, within a period specified in the notice, on the results of that examination.

(2) If a carrier receives a notice under subsection (1), the carrier must, within the period specified in the notice:

(a) carry out the examination concerned; and

(b) report in writing to the ACMA on the results of the examination.

(3) A notice given under subsection (1) is not a legislative instrument.

211 ACMA may require independent audit of costs

(1) In undertaking an arbitration under section 209, the ACMA may, by notice in writing, require a carrier to arrange for an audit of the costs claimed to have been incurred by the carrier in relation to the provision to an interception agency of a delivery capability.

(2) Subject to subsection (3), the audit is to be carried out by an auditor selected by the carrier and approved by the ACMA.

(3) If the auditor selected by a carrier is not approved by the ACMA, the ACMA may require that the audit be carried out by an auditor selected by the ACMA or by the ACMA itself.

(4) Unless the audit is carried out by the ACMA itself, the ACMA may, in the notice requiring the audit, specify the period within which the auditor is to report to the ACMA.

(5) If a carrier receives a notice under this section, the carrier:

(a) must co‑operate in full with the person or body carrying out the audit; and

(b) must bear the costs of the audit.

(6) A notice given under this section is not a legislative instrument.

Chapter 6—Miscellaneous

Part 6‑1—Miscellaneous

298 Protection of persons—control order declared to be void

(1) If:

(a) a warrant was issued on the basis that an interim control order was in force; and

(b) a court subsequently declares the interim control order to be void;

a criminal proceeding does not lie against a person in respect of anything done, or omitted to be done, in good faith by the person:

(d) in the purported exercise of a power, or the purported performance of a function or duty, in a case where the purported exercise of the power, or the purported performance of the function or duty, is consequential on the warrant.

(2) Subsection (1) does not apply to a thing done, or omitted to be done, at a particular time if, at that time, the person knew, or ought reasonably to have known, of the declaration.

299 Dealing with information obtained under a warrant—control order declared to be void

Scope

(1) This section applies if:

(a) a warrant was issued on the basis that an interim control order was in force; and

(b) a court subsequently declares the interim control order to be void; and

(i) the purported execution of the warrant; or

(ii) the purported exercise of a power, or the purported performance of a function or duty, in a case where the purported exercise of the power, or the purported performance of the function or duty, is consequential on the warrant.

Dealing

(2) A person may:

(a) communicate the information to another person; or

(b) make use of the information; or

(d) give the information in evidence in a proceeding;

if:

(e) the person reasonably believes that doing so is necessary to assist in preventing, or reducing the risk, of:

(i) the commission of a terrorist act; or

(ii) serious harm to a person; or

(iii) serious damage to property; or

(f) the person does so for one or more purposes connected with a preventative detention order law.

Definition

(3) In this section:

serious harm has the same meaning as in the Criminal Code.

299A Schedule 1

Schedule 1 has effect.

300 Regulations

The Governor‑General may make regulations, not inconsistent with this Act, prescribing matters:

(a) required or permitted by this Act to be prescribed; or

(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.

Schedule 1—International production orders

Note: See section 299A.

Part 1—Introduction

1 Simplified outline of this Schedule

• This Schedule provides for a scheme to facilitate cooperation in law enforcement matters between Australia and each foreign country that is a party to a designated international agreement.

• The scheme deals with electronic information held by, or under the control of, prescribed communications providers.

• The scheme has the following components:

(a) the issue under this Schedule of international production orders that are directed to prescribed communications providers;

(b) in a case where a corresponding order is issued by a competent authority of a foreign country in accordance with a designated international agreement—the exemption of acts or things done in compliance with such an order from Commonwealth laws restricting interception or disclosure.

• The scheme extends to matters outside Australia.

• An international production order may be issued for purposes in connection with:

(a) the investigation of an offence of a serious nature; or

(b) the monitoring of a person subject to a Part 5.3 supervisory order, so as to achieve a Part 5.3 object; or

• There are 3 types of international production orders:

(a) international production orders relating to interception; and

(b) international production orders relating to stored communications; and

2 Definitions

In this Schedule:

access, when used in relation to material, includes:

(a) access that is subject to a pre‑condition (for example, the use of a password); and

(b) access by way of push technology; and

account includes:

(a) a free account; and

(b) a pre‑paid account; and

ASIO official means:

(a) the Director‑General of Security; or

(b) a Deputy Director‑General of Security; or

(d) an ASIO affiliate.

Attorney‑General’s Department means the Department administered by the Attorney‑General.

Australian Designated Authority means the Secretary of the Attorney‑General’s Department.

based in a foreign country has the meaning given by clause 10A.

certified copy:

(a) in relation to an international production order issued under clause 30—has the meaning given by clause 174; or

(b) in relation to an international production order issued under clause 39—has the meaning given by clause 175; or

(d) in relation to an international production order issued under clause 60—has the meaning given by subclause 177(2); or

(e) in relation to an international production order issued under clause 69—has the meaning given by subclause 177(4); or

(f) in relation to an international production order issued under clause 78—has the meaning given by subclause 177(6); or

(g) in relation to an international production order issued under clause 89—has the meaning given by subclause 178(2); or

(h) in relation to an international production order issued under clause 98—has the meaning given by subclause 178(4); or

(i) in relation to an international production order issued under clause 107—has the meaning given by subclause 178(6).

designated international agreement has the meaning given by clause 3.

eligible Judge has the meaning given by clause 14.

eligible position‑holder means an ASIO employee, or an ASIO affiliate, who holds, or is acting in, a position in the Organisation that is equivalent to or higher than a position occupied by an Executive Level 2 APS employee.

general electronic content service has the meaning given by clause 8.

general electronic content service provider means a person who provides a general electronic content service to the public or a section of the public.

individual message/call application service means a message/call application service to the extent to which the service is provided using a particular telecommunications identifier.

individual transmission service means a transmission service to the extent to which the service is supplied using a particular telecommunications identifier.

intended recipient of a communication has the meaning given by clause 11.

intercept means:

(a) record; or

(b) live stream to a single destination.

international production order means an international production order issued under this Schedule.

issuing authority means a person:

(a) in respect of whom an appointment is in force under clause 16; and

(b) in relation to an international production order applied for by the National Anti‑Corruption Commission—who is a superior Court Judge.

manager of a prescribed communications provider means:

(a) the chief executive officer (however described) of the provider; or

(b) any other individual who is involved in the management of the provider.

material means material:

(a) whether in the form of text; or

(b) whether in the form of data; or

(d) whether in the form of visual images (moving or otherwise); or

(e) whether in the form of signals; or

(f) whether in any other form; or

(g) whether in any combination of forms.

meets the enforcement threshold has the meaning given by clause 125.

member of staff of the Attorney‑General’s Department means:

(a) the Secretary of the Attorney‑General’s Department; or

(b) an APS employee in that Department.

message means a message:

(a) whether in the form of text; or

(b) whether in the form of data; or

(d) whether in the form of visual images (animated or otherwise); or

(e) whether in the form of signals; or

(f) whether in any other form; or

(g) whether in any combination of forms.

message application service has the meaning given by clause 4.

message/call application service means:

(a) a message application service; or

(b) a voice call application service; or

message/call application service provider means a person who provides a message/call application service to the public or a section of the public.

network entity means a person who owns or operates a telecommunications network that is used to supply a transmission service to the public or a section of the public.

nominated ART Intelligence and Security member means a member of the Administrative Review Tribunal in respect of whom a nomination is in force under clause 17 to issue international production orders under Part 4 of this Schedule.

nominated ART member means a member of the Administrative Review Tribunal in respect of whom a nomination is in force under clause 15 to issue international production orders under Division 2 of Part 2, and Division 2 of Part 3, of this Schedule.

operates in a foreign country has the meaning given by clause 10A.

Part 5.3 IPO agency means a Part 5.3 warrant agency to the extent that the agency applies for warrants issued in relation to Part 5.3 supervisory orders in force in relation to persons.

posted on a general electronic content service has the meaning given by clause 9.

prescribed communications provider means:

(a) a network entity; or

(b) a transmission service provider; or

(d) a storage/back‑up service provider; or

(e) a general electronic content service provider.

protected information means:

(a) information obtained in accordance with an international production order; or

(b) information about any of the following:

(i) an application for an international production order;

(ii) the issue of an international production order;

(iii) the existence or non‑existence of an international production order;

(iv) compliance or non‑compliance with an international production order;

(v) the revocation of an international production order;

(vi) the cancellation of an international production order.

relevant agency means:

(a) an interception agency; or

(b) a criminal law‑enforcement agency; or

(d) a Part 5.3 IPO agency.

relevant statistics, in relation to applications of a particular kind, means the following statistics:

(a) how many applications of that kind were made;

(b) how many applications of that kind were withdrawn;

(d) how many international production orders were issued in response to applications of that kind.

senior position‑holder has the same meaning as in the Australian Security Intelligence Organisation Act 1979.

serious category 1 offence means:

(a) an offence that is punishable by a maximum term of imprisonment of 3 years or more; or

(b) an offence that is punishable by imprisonment for life.

Note: For the definition of offence, see section 5.

serious category 2 offence means:

(a) a serious offence (see section 5D); or

(b) an offence that is punishable by a maximum term of imprisonment of 7 years or more; or

Note: For the definition of offence, see section 5.

service includes a website. This definition does not apply to the definition of transmission service.

statutory requirements certificate means a certificate under subclause 3B(2).

storage/back‑up service has the meaning given by clause 7.

storage/back‑up service provider means a person who provides a storage/back‑up service to the public or a section of the public.

stored communication means:

(a) a communication that:

(i) has been carried by a transmission service; and

(ii) is not being carried by a transmission service; and

(iii) is held on equipment that is operated by, and is in the possession of, the transmission service provider who supplied the transmission service; or

(b) a communication that:

(i) has been carried by a transmission service; and

(ii) is not being carried by a transmission service; and

(iii) is held on equipment that is operated by, and is in the possession of, the network entity who owns or operates a telecommunications network used to supply the transmission service; or

(i) has been sent or received using a message/call application service provided by a message/call application service provider; and

(ii) is held on equipment that is operated by, and is in the possession of, the message/call application service provider; or

(d) a recording of a voice call that:

(i) has been made or received using a message/call application service provided by a message/call application service provider; and

(ii) is held on equipment that is operated by, and is in the possession of, the message/call application service provider; or

(e) a recording of a video call that:

(i) has been made or received using a message/call application service provided by a message/call application service provider; and

(ii) is held on equipment that is operated by, and is in the possession of, the message/call application service provider; or

(f) material that:

(i) has been uploaded by an end‑user for storage or back‑up by a storage/back‑up service provided by a storage/back‑up service provider; and

(ii) is held on equipment that is operated by, and is in the possession of, the storage/back‑up service provider; or

(g) material that:

(i) is accessible to, or deliverable to, one or more of the end‑users using a general electronic content service provided by a general electronic content service provider; and

(ii) is held on equipment that is operated by, and is in the possession of, the general electronic content service provider.

telecommunications data:

(a) when used in relation to a communication carried by an individual transmission service—means information about the communication (other than information that is the contents or substance of the communication); or

(b) when used in relation to an individual transmission service—means information about the individual transmission service; or

(c) when used in relation to a message sent or received using an individual message/call application service—means information about the message (other than information that is the contents or substance of the message); or

(d) when used in relation to a voice call made or received using an individual message/call application service—means information about the voice call (other than information that is the contents or substance of the voice call); or

(e) when used in relation to a video call made or received using an individual message/call application service—means information about the video call (other than information that is the contents or substance of the video call); or

(f) when used in relation to an individual message/call application service—means information about the individual message/call application service; or

(g) when used in relation to material that has been uploaded by an end‑user for storage or back‑up by a storage/back‑up service—means information about the material (other than information that is the content or substance of the material); or

(h) when used in relation to an account that a person has with a storage/back‑up service—means information relating to the account; or

(i) when used in relation to material that has been posted on a general electronic content service—means information about the material (other than information that is the content or substance of the material); or

(j) when used in relation to an account that a person has with a general electronic content service—means information relating to the account; or

(k) when used otherwise than in relation to a matter or thing mentioned in any of the preceding paragraphs—means:

(i) information about a communication carried by an individual transmission service (other than information that is the contents or substance of the communication); or

(ii) information about an individual transmission service; or

(iii) information about a message sent or received using an individual message/call application service (other than information that is the contents or substance of the message); or

(iv) information about a voice call made or received using an individual message/call application service (other than information that is the contents or substance of the voice call); or

(v) information about a video call made or received using an individual message/call application service (other than information that is the contents or substance of the video call); or

(vi) information about an individual message/call application service; or

(vii) information about material that has been uploaded by an end‑user for storage or back‑up by a storage/back‑up service (other than information that is the content or substance of the material); or

(viii) information relating to an account that a person has with a storage/back‑up service; or

(ix) information about material that has been posted on a general electronic content service (other than information that is the content or substance of the material); or

(x) information relating to an account that a person has with a general electronic content service.

telecommunications identifier means:

(a) the address or identifier used by a network entity or a transmission service provider for the purposes of:

(i) directing a communication to its intended destination; or

(ii) identifying the origin of a communication; or

(b) the address or identifier used by a message/call application service provider for the purposes of:

(i) directing a message to its intended destination; or

(ii) identifying the origin of a message; or

(i) directing a voice call to its intended destination; or

(ii) identifying the origin of a voice call; or

(d) the address or identifier used by a message/call application service provider for the purposes of:

(i) directing a video call to its intended destination; or

(ii) identifying the origin of a video call;

and includes (for example):

(e) a telephone number; and

(f) a unique identifier for a device (for example, an electronic serial number or a Media Access Control address); and

(g) a user account identifier; and

(h) an internet protocol address; and

(i) an email address.

telecommunications network means a system, or series of systems, that carries, or is capable of carrying, communications by means of guided and/or unguided electromagnetic energy.

telephone application means an application made by telephone for an international production order.

telephone number includes a mobile telephone number.

transmission service means a service for carrying communications by means of guided and/or unguided electromagnetic energy.

transmission service provider means a person who supplies a transmission service to the public or a section of the public.

uploaded has a meaning affected by clause 10.

urgent circumstances has a meaning affected by clause 17A.

use has a meaning affected by clause 12.

video call includes a video call that has an audio component.

video call application service has the meaning given by clause 6.

voice call includes a call that involves a recorded or synthetic voice.

voice call application service has the meaning given by clause 5.

3 Designated international agreement

Bilateral agreement

(1) For the purposes of this Schedule, if:

(a) there is an agreement between Australia and a foreign country; and

(b) a copy of the English text of the agreement is set out in the regulations; and

then:

(d) if the agreement is affected by an amendment, where:

(i) a copy of the English text of the amendment is set out in the regulations; and

(ii) the amendment has entered into force for Australia and the foreign country;

the agreement, as affected by such an amendment, is a designated international agreement; or

(e) if paragraph (d) does not apply—the agreement is a designated international agreement.

Note: An agreement mentioned in paragraph (a) is a treaty to which Australia is a party. Proposed treaty actions, such as amendments of treaties and extensions of the duration of treaties, are subject to Australia’s treaty‑making process. In 2021, the parliamentary scrutiny process for proposed treaty actions included tabling in both Houses of the Parliament and consideration by the Joint Standing Committee on Treaties.

(1A) If:

(a) there is an agreement between Australia and a foreign country; and

(b) the agreement deals with (among other things) the issue of orders (however described) by a competent authority (however described) of the foreign country;

a copy of the English text of the agreement must not be set out in regulations made for the purposes of paragraph (1)(b) unless a statutory requirements certificate is in force under clause 3B in relation to the foreign country and the agreement.

(2) If:

(a) there is an agreement between Australia and a foreign country; and

(b) the agreement deals with (among other things) the issue of orders (however described) by a competent authority (however described) of the foreign country; and

a copy of the English text of the agreement must not be set out in regulations made for the purposes of paragraph (1)(b) unless the Minister has received a written assurance from the government of the foreign country, relating to the use or non‑use of Australian‑sourced information obtained by virtue of the agreement, in connection with any proceeding by way of a prosecution for a death penalty offence in the foreign country. For the purposes of this subclause, information is obtained by virtue of the agreement if it is obtained in accordance with such an order.

Note 1: For Australian‑sourced information, see subclause (8).

Note 2: For death penalty offence, see subclause (7A).

Multilateral agreement

(3) For the purposes of this Schedule, if:

(a) there is an agreement between Australia and 2 or more foreign countries; and

(b) a copy of the English text of the agreement is set out in the regulations; and

then:

(d) if the agreement is affected by an amendment, where:

(i) a copy of the English text of the amendment is set out in the regulations; and

(ii) the amendment has entered into force for Australia;

the agreement, as affected by such an amendment, is a designated international agreement; or

(e) if paragraph (d) does not apply—the agreement is a designated international agreement.

(4) If there is an agreement between Australia and 2 or more foreign countries, the regulations may declare that one or more of those foreign countries are recognised parties to the agreement for the purposes of this Schedule.

(4A) If:

(a) there is an agreement between Australia and 2 or more foreign countries; and

(b) the agreement deals with (among other things) the issue of orders (however described) by a competent authority (however described) of each of the foreign countries;

a foreign country that is a party to the agreement must not be declared under subclause (4) unless a statutory requirements certificate is in force under clause 3B in relation to the foreign country and the agreement.

(5) If:

(a) there is an agreement between Australia and 2 or more foreign countries; and

(b) the agreement deals with (among other things) the issue of orders (however described) by a competent authority (however described) of each of the foreign countries; and

a foreign country covered by paragraph (c) must not be declared under subclause (4) unless the Minister has received a written assurance from the government of the foreign country, relating to the use or non‑use of Australian‑sourced information obtained by virtue of the agreement, in connection with any proceeding by way of a prosecution for a death penalty offence in the foreign country. For the purposes of this subclause, information is obtained by virtue of the agreement if it is obtained in accordance with such an order.

Note 1: For Australian‑sourced information, see subclause (8).

Note 2: For death penalty offence, see subclause (7A).

(6) If:

(a) apart from this subclause, there is a designated international agreement between Australia and one or more foreign countries; and

(b) one or more of those foreign countries are not recognised parties to the agreement;

this Schedule (other than subclauses (3) and (4)) has effect as if those foreign countries were not parties to the agreement.

Note: For recognised parties, see subclause (4).

Announcement by Minister

(7) The Minister must announce, by notifiable instrument, the day an agreement mentioned in subclause (1) or (3) enters into force for Australia.

Death penalty offence

(7A) For the purposes of this clause, death penalty offence means an offence against a law of a foreign country that is punishable by death.

Australian‑sourced information

(8) For the purposes of the application of subclause (2) or (5) to an order, information obtained in accordance with the order is Australian‑sourced information if the order:

(a) requires an act or thing to be done in Australia; or

(b) is directed to an individual who is physically present in Australia; or

(d) is directed to a body established by or under a law of the Commonwealth, a State or a Territory.

3A Disallowance of regulations relating to designated international agreements

Scope

(1) This clause applies to regulations made for the purposes of clause 3.

Disallowance

(2) Either House of the Parliament may, following a motion upon notice, pass a resolution disallowing the regulations. For the resolution to be effective:

(a) the notice must be given in that House within 15 sitting days of that House after the copy of the regulations was tabled in that House under section 38 of the Legislation Act 2003; and

(b) the resolution must be passed, in pursuance of the motion, within 15 sitting days of that House after the giving of that notice.

(3) If neither House passes such a resolution, the regulations takes effect on the day immediately after the last day upon which such a resolution could have been passed if it were assumed that notice of a motion to disallow the regulations was given in each House on the last day of the 15 sitting day period of that House mentioned in paragraph (2)(a).

(4) If:

(a) notice of a motion to disallow the regulations is given in a House of the Parliament within 15 sitting days of that House after the copy of the regulations was tabled in that House under section 38 of the Legislation Act 2003; and

(b) at the end of 15 sitting days of that House after the giving of that notice of motion:

(i) the notice has not been withdrawn and the motion has not been called on; or

(ii) the motion has been called on, moved and (where relevant) seconded and has not been withdrawn or otherwise disposed of;

the regulations is then taken to have been disallowed, and subclause (3) does not apply to the regulations.

(5) Section 42 (disallowance) of the Legislation Act 2003 does not apply to the regulations.

Note 1: The 15 sitting day notice period mentioned in paragraph (2)(a) of this clause is the same as the 15 sitting day notice period mentioned in paragraph 42(1)(a) of the Legislation Act 2003.

Note 2: The 15 sitting day disallowance period mentioned in paragraph (2)(b) of this clause is the same as the 15 sitting day disallowance period mentioned in paragraph 42(1)(b) of the Legislation Act 2003.

3B Statutory requirements certificate—designated international agreements

Scope

(1) This section applies if:

(a) there is an agreement between Australia and one or more foreign countries; and

(b) the agreement deals with (among other things) the issue of orders (however described) by a competent authority (however described) of the foreign country, or each of the foreign countries, concerned.

Certificate

(2) The Attorney‑General may, after consulting the Minister and the Minister for Foreign Affairs, issue a certificate (a statutory requirements certificate) in relation to:

(a) a foreign country that is a party to the agreement; and

(b) the agreement.

(3) A statutory requirements certificate is a notifiable instrument.

(4) The Attorney‑General must not issue a statutory requirements certificate in relation to:

(a) a foreign country that is a party to the agreement; and

(b) the agreement;

unless the Attorney‑General is satisfied that:

(i) the foreign country’s respect for the rule of law; and

(ii) the foreign country’s respect for its obligations under international law relating to human rights; and

(d) the following requirements are met in relation to orders (however described) issued by a competent authority (however described) of the foreign country:

(i) the agreement provides that orders are to be issued in compliance with the law of the foreign country;

(ii) the agreement provides that orders may only be issued for the purposes of obtaining information relevant to the prevention, detection, investigation or prosecution of serious crime (as defined in the agreement);

(iii) the agreement provides that orders may not be issued for the purposes of investigating, prosecuting or punishing a person on account of the person’s political opinions;

(iv) the agreement, so far as it relates to orders, is appropriate in the circumstances, having regard only to the matters set out in subclause (5);

(v) the agreement does not permit orders to be issued for the purposes of obtaining information about the communications of a person who is an Australian citizen or a permanent resident of Australia;

(vi) the agreement provides for limitations and safeguards relating to the use, handling and disclosure of information obtained in accordance with orders;

(vii) the agreement does not permit orders to be issued on behalf of another country;

(viii) the agreement does not impose obligations on the foreign country to share information it has obtained in accordance with orders with another country; and

(e) if one or more offences against the law of the foreign country are death penalty offences (within the meaning of clause 3)—the Minister has received a written assurance from the government of the foreign country in accordance with subclause 3(2) or (5).

(5) For the purposes of subparagraph (4)(d)(iv), the matters are:

(a) criteria for the issuing of orders; and

(b) limitations on the scope and objects of orders; and

set out in the agreement or the law of the foreign country.

Copy of certificate to be given to the Chair of the Joint Standing Committee on Treaties

(6) If the Attorney‑General issues a statutory requirements certificate, the Attorney‑General must:

(a) give a copy of the certificate to the Chair of the Joint Standing Committee on Treaties; and

(b) do so as soon as practicable after the certificate is issued.

3C Australia’s treaty‑making process

Nothing in this Schedule is intended to modify or limit the application of Australia’s treaty‑making process relating to a designated international agreement, including the following proposed treaty actions:

(a) an amendment of a designated international agreement;

(b) an extension of the duration of a designated international agreement.

4 Message application service

(1) For the purposes of this Schedule, message application service means a service that enables end‑users to send or receive messages to or from other end‑users using a transmission service.

(2) For the purposes of subclause (1), it is immaterial whether the service also enables end‑users to send or receive messages to or from persons (other than end‑users) using a transmission service.

Example: A webmail service that enables end‑users to send emails to, or receive emails from, any email address.

(3) For the purposes of this Schedule, a person does not provide a message application service merely because the person supplies a transmission service that enables messages to be sent or received.

(4) For the purposes of this Schedule, a person does not provide a message application service merely because the person provides a billing service, or a fee collection service, in relation to a message application service.

5 Voice call application service

(1) For the purposes of this Schedule, voice call application service means a service that enables end‑users to make or receive voice calls to or from other end‑users using a transmission service.

(2) For the purposes of subclause (1), it is immaterial whether the service also enables end‑users to make or receive voice calls to or from persons (other than end‑users) using a transmission service.

Example: A VOIP service that enables end‑users to make voice calls to, or receive voice calls from, any telephone number.

(3) For the purposes of this Schedule, a person does not provide a voice call application service merely because the person supplies a transmission service that enables voice calls to be made or received.

(4) For the purposes of this Schedule, a person does not provide a voice call application service merely because the person provides a billing service, or a fee collection service, in relation to a voice call application service.

6 Video call application service

(1) For the purposes of this Schedule, video call application service means a service that enables end‑users to make or receive video calls to or from other end‑users using a transmission service.

(2) For the purposes of subclause (1), it is immaterial whether the service also enables end‑users to make or receive video calls to or from persons (other than end‑users) using a transmission service.

(3) For the purposes of this Schedule, a person does not provide a video call application service merely because the person supplies a transmission service that enables video calls to be made or received.

(4) For the purposes of this Schedule, a person does not provide a video call application service merely because the person provides a billing service, or a fee collection service, in relation to a video call application service.

7 Storage/back‑up service

(1) For the purposes of this Schedule, storage/back‑up service means a service that enables end‑users to store or back‑up material, where the uploading of the material for storage or back‑up is by means of a transmission service.

(2) For the purposes of this Schedule, a person does not provide a storage/back‑up service merely because the person supplies a transmission service that enables material to be uploaded for storage or back‑up.

(3) For the purposes of this Schedule, a person does not provide a storage/back‑up service merely because the person provides a billing service, or a fee collection service, in relation to a storage/back‑up service.

8 General electronic content service

(1) For the purposes of this Schedule, general electronic content service means:

(a) a service that allows end‑users to access material using a transmission service; or

(b) a service that delivers material to persons having equipment appropriate for receiving that material, where the delivery of the service is by means of a transmission service;

but does not include:

(d) a storage/back‑up service; or

(e) a service prescribed by the regulations.

(2) For the purposes of this Schedule, a person does not provide a general electronic content service merely because the person supplies a transmission service that enables material to be accessed or delivered.

(3) For the purposes of this Schedule, a person does not provide a general electronic content service merely because the person provides a billing service, or a fee collection service, in relation to a general electronic content service.

9 When material is posted on a general electronic content service

For the purposes of this Schedule, material is posted on a general electronic content service by a person if:

(a) the person is an end‑user of the service; and

(b) the person causes the material to be accessible to, or delivered to, one or more other end‑users using the service.

10 Uploaded material

For the purposes of this Schedule, if:

(a) a person uses a device; and

(b) the device has software that automatically uploads material for storage or back‑up by a storage/back‑up service; and

the person is taken have to uploaded the material for storage or back‑up by the storage/back‑up service.

10A When a prescribed communications provider is based in, or operates in, a foreign country

Based in a foreign country—individual

(1) For the purposes of the application of this Schedule to a prescribed communications provider who is an individual, the provider is based in a foreign country if, and only if, the provider is ordinarily resident in the foreign country.

Based in a foreign country—body corporate

(2) For the purposes of the application of this Schedule to a prescribed communications provider that is a body corporate, the provider is based in a foreign country if, and only if:

(a) the provider is incorporated in the foreign country; or

(b) the provider has its principal place of business in the foreign country.

Operates in a foreign country

(3) For the purposes of this Schedule, a prescribed communications provider operates in a foreign country if, and only if:

(a) the provider handles communications in the foreign country; or

(b) the provider holds stored communications in the foreign country; or

11 Intended recipient of a communication

For the purposes of this Schedule, 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 individual transmission service that was used to receive the communication.

12 Use of a thing

A reference in this Schedule to the use of a thing is a reference to the use of the thing either:

(a) in isolation; or

(b) in conjunction with one or more other things.

Note: See also section 18A of the Acts Interpretation Act 1901.

13 Identification of a particular person

For the purposes of this Schedule, a particular person may be identified:

(a) by the person’s full name; or

(b) by a name by which the person is commonly known; or

(d) as the person to whom a particular individual message/call application service is provided; or

(e) as the person who has a particular account with a prescribed communications provider; or

(f) as the person who has a particular telephone number; or

(g) as the person who has a particular email address; or

(h) as the person who has a particular internet protocol address; or

(i) as the person who has a device that has a particular unique identifier (for example, an electronic serial number or a Media Access Control address); or

(j) by any other unique identifying factor that is applicable to the person.

14 Eligible judge

(1) For the purposes of this Schedule, eligible Judge means a person:

(a) in relation to whom a consent under subclause (2) and a declaration under subclause (3) are in force; and

(b) in relation to an international production order applied for by the National Anti‑Corruption Commission—who is a superior Court Judge.

(2) A Judge may, by writing, consent to be nominated by the Attorney‑General under subclause (3).

(3) The Attorney‑General may, by writing, declare Judges in relation to whom consents are in force under subclause (2) to be eligible Judges for the purposes of this Schedule.

(4) An eligible Judge has, in relation to the performance or exercise of a function or power conferred on an eligible Judge by this Schedule, the same protection and immunity as a Justice of the High Court has in relation to proceedings in the High Court.

15 Nominated ART member

(1) The Attorney‑General may, by writing, nominate a person who holds one of the following appointments to the Administrative Review Tribunal to issue international production orders (except to the National Anti‑Corruption Commission) under Division 2 of Part 2, and Division 2 of Part 3, of this Schedule:

(a) Deputy President;

(b) senior member;

(2) Despite subclause (1), the Attorney‑General must not nominate a person who holds an appointment as a senior member appointed 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 the nominated ART member ceases to hold an appointment of a kind set out in subclause (1).

(4) A nominated ART member has, in relation to the performance or exercise of a function or power conferred on a nominated ART member by this Schedule, the same protection and immunity as a Justice of the High Court has in relation to proceedings in the High Court.

16 Issuing authority

(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

(ii) a magistrate;

and in relation to whom a consent under subclause (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 so 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 subclause (1).

(3) A person’s appointment ceases to have effect if the person ceases to be a person whom the Attorney‑General could appoint under this clause.

(4) An appointment under subclause (1) has no effect for the purposes of a provision of this Act (other than this Schedule).

(5) An issuing authority has, in relation to the performance or exercise of a function or power conferred on an issuing authority by this Schedule, the same protection and immunity as a Justice of the High Court has in relation to proceedings in the High Court.

17 Nominated ART Intelligence and Security member

(1) The Attorney‑General may, by writing, nominate a person who:

(a) holds one of the following appointments to the Administrative Review Tribunal:

(ii) senior member;

(iii) general member; and

(b) is a member of the Intelligence and Security jurisdictional area of the Administrative Review Tribunal;

to issue international production orders under Part 4 of this Schedule.

(2) Despite subclause (1), the Attorney‑General must not nominate a person who holds an appointment as a senior member on a sessional basis of the Administrative Review 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 of a person under subclause (1) ceases to have effect if:

(a) the person ceases to hold an appointment of a kind set out in subclause (1); or

(b) the person ceases to be a member of the Intelligence and Security jurisdictional area of the Administrative Review Tribunal.

(3A) The Attorney‑General may, by writing, nominate a person who is a Deputy President of the Administrative Review Tribunal to issue international production orders under Part 4 of this Schedule.

(3B) A nomination of a person under subclause (3A) ceases to have effect if the person ceases to be a Deputy President of the Administrative Review Tribunal.

(4) A nominated ART Intelligence and Security member has, in relation to the performance or exercise of a function or power conferred on a nominated ART Intelligence and Security member by this Schedule, the same protection and immunity as a Justice of the High Court has in relation to proceedings in the High Court.

(5) For the purposes of this clause, a person is a member of the Intelligence and Security jurisdictional area of the Administrative Review Tribunal if the person:

(a) is assigned to be a leader of the Intelligence and Security jurisdictional area of the Administrative Review Tribunal under section 197 of the Administrative Review Tribunal Act 2024; or

(b) is assigned to the Intelligence and Security jurisdictional area of the Administrative Review Tribunal under section 199 of the Administrative Review Tribunal Act 2024.

17A Urgent circumstances

(1) For the purposes of this Schedule, it is necessary, because of urgent circumstances, to make an application under Part 2 or 3 of this Schedule for an international production order by telephone if, and only if:

(a) an imminent risk of serious harm to a person or substantial damage to property exists; and

(b) the order is necessary for the purpose of dealing with that risk; and

(2) For the purposes of this Schedule, it is necessary, because of urgent circumstances, to make an application under Part 4 of this Schedule for an international production order by telephone if, and only if:

(a) the delay caused by making a written application may be prejudicial to security; and

(b) it is not practicable in the circumstances to make the application in writing.

(3) For the purposes of this Schedule, it is necessary, because of urgent circumstances, for the Attorney‑General to consent orally to the making of an application under Part 4 of this Schedule for an international production order if, and only if:

(a) the delay caused by consenting in writing may be prejudicial to security; and

(b) it is not practicable in the circumstances to consent in writing.

18 Meaning of expressions in other provisions of this Act

In determining the meaning of an expression (other than “international production order”) used in a provision of this Act (other than this Schedule), an expression used in this Schedule is to be disregarded.

19 Extra‑territorial application

This Schedule extends to acts, omissions, matters and things outside Australia.

20 Constitutional basis of this Schedule

This Schedule relies on the Commonwealth’s legislative powers under paragraph 51(v) (communications) of the Constitution.

Part 2—International production orders relating to the enforcement of the criminal law

Division 1—Introduction

21 Simplified outline of this Part

• An international production order may be issued for purposes in connection with the investigation of an offence of a serious nature.

• There are 3 types of international production orders:

(a) international production orders relating to interception; and

(b) international production orders relating to stored communications; and

• An international production order is directed to a prescribed communications provider.

• An international production order may be issued in response to an application made by:

(a) in the case of an order relating to interception—an interception agency; or

(b) in the case of an order relating to stored communications—a criminal‑law enforcement agency; or

• An application for an international production order must nominate a designated international agreement.

Note: An international production order comes into force when it is given to a prescribed communications provider under clause 111.

Division 2—International production orders relating to interception: enforcement of the criminal law

Subdivision A—Applications

22 Application for international production order—enforcement of the criminal law

(1) An interception agency may apply for an international production order under clause 30 that:

(a) is in respect of:

(i) one or more individual transmission services; or

(ii) one or more individual message/call application services; and

(b) is directed to a prescribed communications provider.

(1A) The interception agency may apply for the order to:

(a) for an application made by the National Anti‑Corruption Commission—an eligible Judge; or

(b) otherwise—an eligible Judge or nominated ART member.

(2) The application must nominate a designated international agreement.

(3) The application must be made on the interception agency’s behalf by:

(a) in the case of the Australian Federal Police—a member of the Australian Federal Police; or

(b) 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 NACC who is authorised in writing by the National Anti‑Corruption Commissioner for the purposes of this paragraph; or

(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

(d) in the case of the Police Force of a State—an officer of that Police Force; or

(e) 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

(f) in the case of the Independent Commission Against Corruption (NSW)—an officer of the Independent Commission Against Corruption (NSW); or

(g) in the case of the IBAC (Vic.)—an IBAC (Vic.) officer; or

(h) in the case of the Crime and Corruption Commission (Qld)—a commission officer (within the meaning of the Crime and Corruption Act (Qld)); or

(i) 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

(j) in the case of the Corruption and Crime Commission (WA)—an officer of the Corruption and Crime Commission (WA); or

(k) 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).

23 Form of application

(1) Subject to subclause (2), an application under clause 22 for an international production order must be in writing.

(2) If the person making an application under clause 22 for an international production order on an interception 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 subclause (3); and

(b) thinks it necessary, because of urgent circumstances, to make the application by telephone;

the person may make the application by telephone.

Note: See also clause 17A (urgent circumstances) and clause 172 (action required).

(3) The chief officer of an interception agency may authorise in writing, for the purposes of subclause (2), persons who, or classes of persons who, are entitled under clause 22 to make applications on the agency’s behalf.

24 Contents of application

A written application under clause 22 by an interception agency for an international production order must set out:

(a) the name of the agency; and

(b) the name of the person making the application on the agency’s behalf.

25 Affidavits to accompany written application

(1) A written application under clause 22 by an interception agency for an international production order must be accompanied by an affidavit complying with this clause.

(2) The affidavit must set out the facts and other grounds on which the application is based.

(3) If the application is for an international production order in respect of one or more individual transmission services, the affidavit must set out the following information, so far as it can be derived from the interception agency’s records:

(a) the number of previous applications (if any) for international production orders that the agency has made under clause 22 in relation to those individual transmission services;

(b) the number of international production orders (if any) previously issued in response to such applications;

(c) particulars of the use made by the agency of intercepted communications made available to the agency under such orders.

(4) If the application is for an international production order in respect of one or more individual message/call application services, the affidavit must set out the following information, so far as it can be derived from the interception agency’s records:

(a) the number of previous applications (if any) for international production orders that the agency has made under clause 22 in relation to those individual message/call application services;

(b) the number of international production orders (if any) previously issued in response to such applications;

(c) particulars of the use made by the agency of intercepted messages, voice calls or video calls made available to the agency under such orders.

(5) Despite subclause (1), a written application may be accompanied by 2 or more affidavits that together set out each matter that, apart from this subclause, this clause would have required an affidavit accompanying the application to set out.

26 Information to be given on telephone application

The information given to an eligible Judge or nominated ART member in connection with a telephone application under clause 22 to the eligible Judge or nominated ART member:

(a) must include particulars of the urgent circumstances because of which the person making the application on the interception 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, clause 24 or 25 would have required the application, or an affidavit accompanying it, to set out; and

27 Giving further information to eligible Judge or nominated ART member

(1) An eligible Judge or nominated ART member may require further information to be given in connection with an application under clause 22 to the eligible Judge or nominated ART member for an international production order.

(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 eligible Judge or nominated ART member directs.

28 Application by interception agency of Victoria

Scope

(1) This clause applies if an interception agency of Victoria applies, under clause 22, to an eligible Judge or nominated ART member for an international production order under clause 30 that is in respect of:

(a) one or more individual transmission services; or

(b) one or more individual message/call application services.

PIM may make submissions

(2) A Victorian PIM may, orally or in writing, make submissions to the eligible Judge or nominated ART member about the following matters:

(a) in the case of an application for an international production order that is in respect of one or more individual transmission services—the matters mentioned in subparagraphs 30(5)(a)(i) to (vi);

(b) in the case of an application for an international production order that is in respect of one or more individual message/call application services—the matters mentioned in subparagraphs 30(5)(b)(i) to (vi).

PIM may question certain persons

(3) The Victorian PIM may, for the purpose of making submissions under subclause (2), question:

(a) the person making the application for the international production order on the interception agency’s behalf; or

(b) a person who, under clause 27, is required by the eligible Judge or nominated ART member to give further information to the eligible 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.

29 Application by interception agency of Queensland

Scope

(1) This clause applies if an interception agency of Queensland applies, under clause 22, to an eligible Judge or nominated ART member for an international production order under clause 30 that is in respect of:

(a) one or more individual transmission services; or

(b) one or more individual message/call application services.

PIM may make submissions

(2) A Queensland PIM may, orally or in writing, make submissions to the eligible Judge or nominated ART member about the following matters:

PIM may question certain persons

(3) The Queensland PIM may, for the purpose of making submissions under subclause (2), question:

(a) the person making the application for the international production order on the interception agency’s behalf; or

However, the Queensland PIM may only do so in the presence of the eligible Judge or nominated ART member.

(4) A Queensland PIM may, by writing, delegate to a Queensland deputy PIM the Queensland PIM’s power under subclause (2) or (3), or both.

(5) In exercising powers under the delegation, the Queensland deputy PIM must comply with any directions of the Queensland PIM.

Subdivision B—International production orders relating to interception

30 Issue of international production order—enforcement of the criminal law

Scope

(1) This clause applies if an interception agency applies, under clause 22, to an eligible Judge or nominated ART member for an international production order that:

(a) is in respect of:

(i) one or more individual transmission services; or

(ii) one or more individual message/call application services; and

(b) is directed to a prescribed communications provider.

Issue of international production order

(2) If the eligible Judge or nominated ART member is satisfied, on the basis of the information given to the eligible Judge or nominated ART member under this Division in connection with the application, that:

(a) in the case of an application for an international production order that is in respect of one or more individual transmission services—there are reasonable grounds for suspecting that:

(i) the prescribed communications provider owns or operates a telecommunications network that is, or is likely to be, used to supply those individual transmission services; or

(ii) the prescribed communications provider supplies those individual transmission services; and

(b) in the case of an application for an international production order that is in respect of one or more individual message/call application services—there are reasonable grounds for suspecting that the prescribed communications provider provides those individual message/call application services; and

(ba) the person who made the application on behalf of the agency reasonably suspects that the prescribed communications provider is based in, or operates in, a foreign country that is a party to the designated international agreement nominated in the application; and

(d) in the case of a telephone application—because of urgent circumstances, it was necessary to make the application by telephone; and

(e) in the case of an application for an international production order that is in respect of one or more individual transmission services—there are reasonable grounds for suspecting that a particular person is using, or is likely to use, those individual transmission services; and

(f) in the case of an application for an international production order that is in respect of one or more individual message/call application services—there are reasonable grounds for suspecting that a particular person is using, or is likely to use, those individual message/call application services; and

(g) in the case of an application for an international production order that is in respect of one or more individual transmission services—information that would be likely to be obtained by accessing, under an order issued under this clause, communications that are being carried by those individual transmission services would be likely to assist in connection with the investigation by the interception agency of a serious category 2 offence, or serious category 2 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 those individual transmission services; and

(h) in the case of an application for an international production order that is in respect of one or more individual message/call application services—information that would be likely to be obtained by accessing, under an order issued under this clause, messages sent or received, voice calls made or received, or video calls made or received, using those individual message/call application services would be likely to assist in connection with the investigation by the interception agency of a serious category 2 offence, or serious category 2 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 those individual message/call application services;

the eligible Judge or nominated ART member may issue an order (to be known as an international production order) directing the prescribed communications provider to:

(i) in the case of an application for an international production order that is in respect of one or more individual transmission services:

(i) intercept communications carried by those individual transmission services during a specified period; and

(ii) make those intercepted communications available to the interception agency; and

(iii) disclose to the interception agency specified telecommunications data that relates to those intercepted communications; and

(iv) disclose to the interception agency specified telecommunications data that relates to those individual transmission services; or

(j) in the case of an application for an international production order that is in respect of one or more individual message/call application services:

(i) intercept messages sent or received, voice calls made or received, or video calls made or received, using those individual message/call application services during a specified period; and

(ii) make those intercepted messages, voice calls or video calls available to the interception agency; and

(iii) disclose to the interception agency specified telecommunications data that relates to those intercepted messages, voice calls or video calls; and

(iv) disclose to the interception agency specified telecommunications data that relates to those individual message/call application services.

Note: Subclauses (6) and (7) restrict the issuing of international production orders if subparagraph (2)(g)(ii) or (h)(ii) applies.

Period specified in international production order

(3) A period specified in an international production order for the purposes of subparagraph (2)(i)(i) or (j)(i) must not begin before the time when the order is given to the prescribed communications provider.

Note: International production orders are given under clause 111.

(4) The period specified in an international production order for the purposes of subparagraph (2)(i)(i) or (j)(i) must not be longer than:

(a) if subparagraph (2)(g)(ii) or (h)(ii) applies (as the case requires)—45 days; or

(b) otherwise—90 days.

Matters to which eligible Judge or nominated ART member must have regard

(5) In deciding whether to issue an international production order under subclause (2), the eligible Judge or nominated ART member must have regard to the following matters:

(a) in the case of an application for an international production order that is in respect of one or more individual transmission services:

(i) how much the privacy of any person or persons would be likely to be interfered with by accessing, under an international production order, communications that are being carried by those individual transmission services; and

(ii) the gravity of the conduct constituting the serious category 2 offence or serious category 2 offences being investigated; and

(iii) how much the information mentioned in paragraph (2)(g) would be likely to assist in connection with the investigation by the interception agency of the serious category 2 offence or serious category 2 offences; and

(iv) to what extent methods of investigating the serious category 2 offence or serious category 2 offences that do not involve so accessing communications have been used by, or are available to, the interception agency; and

(v) how much the use of such methods would be likely to assist in connection with the investigation by the interception agency of the serious category 2 offence or serious category 2 offences; and

(vi) how much the use of such methods would be likely to prejudice the investigation by the interception agency of the serious category 2 offence or serious category 2 offences, whether because of delay or for any other reason; and

(vii) in relation to an application by an interception agency of Victoria—any submissions made by a Victorian PIM under clause 28 to the eligible Judge or nominated ART member; and

(viii) in relation to an application by an interception agency of Queensland—any submissions made by a Queensland PIM under clause 29 to the eligible Judge or nominated ART member; and

(ix) such other matters (if any) as the eligible Judge or nominated ART member considers relevant;

(b) in the case of an application for an international production order that is in respect of one or more individual message/call application services:

(i) how much the privacy of any person or persons would be likely to be interfered with by accessing, under an international production order, messages sent or received, voice calls made or received, or video calls made or received, using those individual message/call application services; and

(ii) the gravity of the conduct constituting the serious category 2 offence or serious category 2 offences being investigated; and

(iii) how much the information mentioned in paragraph (2)(h) would be likely to assist in connection with the investigation by the interception agency of the serious category 2 offence or serious category 2 offences; and

(iv) to what extent methods of investigating the serious category 2 offence or serious category 2 offences that do not involve so accessing messages, voice calls or video calls have been used by, or are available to, the interception agency; and

(v) how much the use of such methods would be likely to assist in connection with the investigation by the interception agency of the serious category 2 offence or serious category 2 offences; and

(vii) in relation to an application by an interception agency of Victoria—any submissions made by a Victorian PIM under clause 28 to the eligible Judge or nominated ART member; and

(viii) in relation to an application by an interception agency of Queensland—any submissions made by a Queensland PIM under clause 29 to the eligible Judge or nominated ART member; and

(ix) such other matters (if any) as the eligible Judge or nominated ART member considers relevant.

Restriction on issuing order

(6) The eligible Judge or nominated ART member must not issue an international production order under subclause (2) in a case where subparagraph (2)(g)(ii) applies unless the eligible Judge or nominated ART member is satisfied that:

(a) the interception agency has exhausted all other practicable methods of identifying the individual transmission services used, or likely to be used, by the person involved in the serious category 2 offence or serious category 2 offences mentioned in paragraph (2)(g); or

(b) interception (as permitted under an international production order) of communications carried by individual transmission services used or likely to be used by that person would not otherwise be possible.

(7) The eligible Judge or nominated ART member must not issue an international production order under subclause (2) in a case where subparagraph (2)(h)(ii) applies unless the eligible Judge or nominated ART member is satisfied that:

(a) the interception agency has exhausted all other practicable methods of identifying the individual message/call application services used, or likely to be used, by the person involved in the serious category 2 offence or serious category 2 offences mentioned in paragraph (2)(h); or

(b) interception (as permitted under an international production order) of messages sent or received, voice calls made or received, or video calls made or received, using individual message/call application services used or likely to be used by that person would not otherwise be possible.

Copying stored communications

(8) If an international production order issued under subclause (2) directs a prescribed communications provider to intercept communications, messages, voice calls or video calls:

(a) the prescribed communications provider may comply with the order by copying stored communications that consist of the communications, messages, voice calls or video calls; and

(b) a copy of a stored communication made for that purpose is taken to be a communication, message, voice call or video call (as the case may be) intercepted under the international production order.

31 Content of international production order

Scope

(1) This clause applies to an international production order issued under clause 30 in response to an application made by an interception agency.

Content

(2) The order must be signed by the eligible Judge or nominated ART member who issued it.

(3) The order must set out the following:

(a) the date on which the order was issued;

(b) the name of the interception agency;

(d) the name of the designated international agreement nominated in the application for the order;

(e) the applicable telecommunications identifiers:

(i) in the case of an order that is in respect of one or more individual transmission services—to which those individual transmission services relate; or

(ii) in the case of an order that is in respect of one or more individual message/call application services—to which those individual message/call application services relate;

(f) short particulars of each serious category 2 offence in relation to which the eligible Judge or nominated ART member issuing the order was satisfied, on the application for the order, as mentioned in paragraph 30(2)(g) or (h) of this Schedule (as the case requires).

(4) If the order directs a prescribed communications provider to intercept communications, the order may require the provider to:

(a) intercept those communications in a specified way; and

(b) make those intercepted communications available to the interception agency in a specified way.

(5) A requirement under subclause (4) may:

(a) require that intercepted communications be made available to the interception agency directly; or

(b) require that intercepted communications be made available to the interception agency indirectly via the Australian Designated Authority.

(6) If the order directs a prescribed communications provider to intercept messages, voice calls or video calls, the order may require the provider to:

(a) intercept those messages, voice calls or video calls in a specified way; and

(b) make those intercepted messages, voice calls or video calls available to the interception agency in a specified way.

(7) A requirement under subclause (6) may:

(a) require that intercepted messages, voice calls or video calls be made available to the interception agency directly; or

(b) require that intercepted messages, voice calls or video calls be made available to the interception agency indirectly via the Australian Designated Authority.

(8) If the order directs a prescribed communications provider to disclose telecommunications data to the interception agency, the order may require the provider to disclose that data to the agency in a specified way.

(9) A requirement under subclause (8) may:

(a) require that the telecommunications data be disclosed to the interception agency directly; or

(b) require that the telecommunications data be disclosed to the interception agency indirectly via the Australian Designated Authority.

(10) For the purposes of this clause, a specified way may deal with matters of timing.

Example: A requirement under subclause (4) may require that an intercepted communication be made available to the interception agency within 30 minutes after the communication was completed.

32 Issue of further international production order

(1) If:

(a) an international production order (the original order) was issued under clause 30; and

(b) the original order was in respect of one or more individual transmission services; and

this Schedule does not prevent the issue of a further international production order under clause 30 that is:

(d) in respect of any or all of those services; and

(e) directed to the provider;

so long as the period specified in the further order for the purposes of subparagraph 30(2)(i)(i) of this Schedule begins after the end of the period specified in the original order for the purposes of that subparagraph.

(2) If:

(a) an international production order (the original order) was issued under clause 30; and

(b) the original order was in respect of one or more individual message/call application services; and

this Schedule does not prevent the issue of a further international production order under clause 30 that is:

(d) in respect of any or all of those services; and

(e) directed to the provider;

so long as the period specified in the further order for the purposes of subparagraph 30(2)(j)(i) of this Schedule begins after the end of the period specified in the original order for the purposes of that subparagraph.

Division 3—International production orders relating to stored communications: enforcement of the criminal law

Subdivision A—Applications

33 Application for international production order—enforcement of the criminal law

(1) A criminal law‑enforcement agency may apply to an issuing authority for an international production order under clause 39 that:

(a) is in respect of a particular person; and

(b) is directed to a prescribed communications provider.

(2) The application must nominate a designated international agreement.

(3) The application must be made on the criminal law‑enforcement agency’s behalf by:

(a) if the agency is referred to in subclause 22(3)—a person referred to in that subclause in relation to the 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 subclause (4).

(4) The chief officer of the criminal law‑enforcement agency may, in writing, nominate for the purposes of subparagraph (3)(b)(ii) an office or position in the agency that is involved in the management of the agency.

(5) A nomination under subclause (4) is not a legislative instrument.

34 Form of application

(1) An application under clause 33 must be in writing.

(2) However, a person making the application on the criminal law‑enforcement 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 subclause (3); and

(b) thinks it necessary, because of urgent circumstances, to make the application by telephone.

Note: See also clause 17A (urgent circumstances) and clause 172 (action required).

(3) The chief officer of a criminal law‑enforcement agency may, in writing, authorise persons (including classes of persons) for the purposes of subclause (2). However, each person must be entitled under clause 33 to make applications on the agency’s behalf.

35 Contents of written application

An application under clause 33 must, if it is in writing, set out:

(a) the name of the criminal law‑enforcement agency; and

(b) the name of the person making the application on the agency’s behalf.

36 Affidavits to accompany written application

(1) An application under clause 33 must, if it is in writing, be accompanied by an affidavit complying with this clause.

(2) The affidavit must set out the facts and other grounds on which the application is based.

(3) Despite subclause (1), a written application may be accompanied by 2 or more affidavits that together set out each matter that, apart from this subclause, this clause would have required an affidavit accompanying the application to set out.

37 Information to be given on telephone application

The information given to an issuing authority in connection with a telephone application under clause 33 to the issuing authority:

(a) must include particulars of the urgent circumstances because of which the person making the application on the criminal law‑enforcement 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, clause 35 or 36 would have required the application, or an affidavit accompanying it, to set out; and

38 Giving further information to issuing authority

(1) An issuing authority may require further information to be given in connection with an application under clause 33 to the issuing authority for an international production order.

(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.

Subdivision B—International production orders relating to stored communications

39 Issue of international production order—enforcement of the criminal law

Scope

(1) This clause applies if a criminal law‑enforcement agency applies, under clause 33, to an issuing authority for an international production order that:

(a) is in respect of a particular person (the relevant person); and

(b) is directed to a prescribed communications provider.

Issue of international production order

(2) If the issuing authority is satisfied, on the basis of the information given to the issuing authority under this Division in connection with the application, that:

(a) there are reasonable grounds for suspecting that the prescribed communications provider holds any of the following stored communications:

(i) stored communications that consist of communications that the relevant person has made using a telecommunications network owned or operated by the prescribed communications provider;

(ii) stored communications that consist of communications that another person has made using a telecommunications network owned or operated by the prescribed communications provider, and for which the relevant person is the intended recipient;

(iii) stored communications that consist of communications that the relevant person has made using a transmission service supplied by the prescribed communications provider;

(iv) stored communications that consist of communications that another person has made using a transmission service supplied by the prescribed communications provider, and for which the relevant person is the intended recipient;

(v) stored communications that consist of messages that the relevant person has sent or received using a message/call application service provided by the prescribed communications provider;

(vi) stored communications that consist of recordings of voice calls that the relevant person has made or received using a message/call application service provided by the prescribed communications provider;

(vii) stored communications that consist of recordings of video calls that the relevant person has made or received using a message/call application service provided by the prescribed communications provider;

(viii) stored communications that consist of material that the relevant person has uploaded for storage or back‑up by a storage/back‑up service provided by the prescribed communications provider;

(ix) stored communications that consist of material that the relevant person has posted to a general electronic content service provided by the prescribed communications provider; and

(aa) the person who made the application on behalf of the agency reasonably suspects that the prescribed communications provider is based in, or operates in, a foreign country that is a party to the designated international agreement nominated in the application; and

(b) Subdivision A has been complied with in relation to the application; and

(c) in the case of a telephone application—because of urgent circumstances, it was necessary to make the application by telephone; and

(d) information that would be likely to be obtained by making a copy, under an order issued under this clause, of the stored communications would be likely to assist in connection with the investigation by the criminal law‑enforcement agency of a serious category 1 offence, or serious category 1 offences, in which the relevant person is involved;

the issuing authority may issue an order (to be known as an international production order) directing the prescribed communications provider to:

(e) make a copy of any such stored communications; and

(f) make the copy available to the criminal law‑enforcement agency; and

(g) if the stored communications consist of communications carried by an individual transmission service—disclose to the agency:

(i) specified telecommunications data that relates to those communications; and

(ii) specified telecommunications data that relates to the individual transmission service; and

(h) if the stored communications consist of messages sent or received using an individual message/call application service—disclose to the agency:

(i) specified telecommunications data that relates to those messages; and

(ii) specified telecommunications data that relates to the individual message/call application service; and

(i) if the stored communications consist of recordings of voice calls made or received using an individual message/call application service—disclose to the agency:

(i) specified telecommunications data that relates to those voice calls; and

(ii) specified telecommunications data that relates to the individual message/call application service; and

(j) if the stored communications consist of recordings of video calls made or received using an individual message/call application service—disclose to the agency:

(i) specified telecommunications data that relates to those video calls; and

(ii) specified telecommunications data that relates to the individual message/call application service; and

(k) if the stored communications consist of material that has been uploaded by an end‑user for storage or back‑up by a storage/back‑up service—disclose to the agency:

(i) specified telecommunications data that relates to that material; and

(ii) specified telecommunications data that relates to the end‑user’s account with the storage/back‑up service; and

(l) if the stored communications consist of material posted to a general electronic content service by an end‑user—disclose to the agency:

(i) specified telecommunications data that relates to that material; and

(ii) specified telecommunications data that relates to the end‑user’s account with the general electronic content service.

Matters to which issuing authority must have regard

(3) In deciding whether to issue an international production order under subclause (2), the issuing authority must have regard to the following matters:

(a) how much the privacy of any person or persons would be likely to be interfered with by the criminal law‑enforcement agency obtaining, under an international production order, a copy of the stored communications;

(b) the gravity of the conduct constituting the serious category 1 offence or serious category 1 offences being investigated;

(c) how much the information mentioned in paragraph (2)(d) would be likely to assist in connection with the investigation by the criminal law‑enforcement agency of the serious category 1 offence or serious category 1 offences;

(d) to what extent methods of investigating the serious category 1 offence or serious category 1 offences that do not involve so obtaining a copy of the stored communications have been used by, or are available to, the criminal law‑enforcement agency;

(e) how much the use of such methods would be likely to assist in connection with the investigation by the criminal law‑enforcement agency of the serious category 1 offence or serious category 1 offences;

(f) how much the use of such methods would be likely to prejudice the investigation by the criminal law‑enforcement agency of the serious category 1 offence or serious category 1 offences, whether because of delay or for any other reason;

(g) such other matters (if any) as the issuing authority considers relevant.

40 Content of international production order

Scope

(1) This clause applies to an international production order issued under clause 39 in response to an application made by a criminal law‑enforcement agency.

Content

(2) The order must be signed by the issuing authority who issued it.

(3) The order must set out the following:

(a) the date on which the order was issued;

(b) the name of the criminal law‑enforcement agency;

(d) the name of the designated international agreement nominated in the application for the order;

(e) short particulars of each serious category 1 offence in relation to which the issuing authority issuing the order was satisfied, on the application for the order, as mentioned in paragraph 39(2)(d) of this Schedule.

(4) If the order directs a prescribed communications provider to make a copy of stored communications available to the criminal law‑enforcement agency, the order may require the provider to make that copy available to the agency in a specified way.

(5) A requirement under subclause (4) may:

(a) require that a copy of stored communications be made available to the criminal law‑enforcement agency directly; or

(b) require that a copy of stored communications be made available to the criminal law‑enforcement agency indirectly via the Australian Designated Authority.

(6) If the order directs a prescribed communications provider to disclose telecommunications data to the criminal law‑enforcement agency, the order may require the provider to disclose that data to the agency in a specified way.

(7) A requirement under subclause (6) may:

(a) require that the telecommunications data be disclosed to the criminal law‑enforcement agency directly; or

(b) require that the telecommunications data be disclosed to the criminal law‑enforcement agency indirectly via the Australian Designated Authority.

(8) For the purposes of this clause, a specified way may deal with matters of timing.

41 Issue of further international production order

If:

(a) an international production order (the original order) was issued under clause 39; and

(b) the original order was in respect of a particular person; and

this Schedule does not prevent the issue of a further international production order under clause 39 that:

(d) is in respect of the person; and

(e) is directed to the provider.

Division 4—International production orders relating to telecommunications data: enforcement of the criminal law

Subdivision A—Applications

42 Application for international production order—enforcement of the criminal law

(1) An enforcement agency may apply to an issuing authority for an international production order under clause 48 that is directed to a prescribed communications provider.

(2) The application must nominate a designated international agreement.

(3) The application must be made on the enforcement agency’s behalf by an authorised officer of the agency.

43 Form of application

(1) An application under clause 42 must be in writing.

(2) However, a person making the application on the enforcement 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 subclause (3); and

(b) thinks it necessary, because of urgent circumstances, to make the application by telephone.

Note: See also clause 17A (urgent circumstances) and clause 172 (action required).

(3) The chief officer of an enforcement agency may, in writing, authorise persons (including classes of persons) for the purposes of subclause (2). However, each person must be entitled under clause 42 to make applications on the agency’s behalf.

44 Contents of written application

An application under clause 42 must, if it is in writing, set out:

(a) the name of the enforcement agency; and

(b) the name of the person making the application on the agency’s behalf.

45 Affidavits to accompany written application

(1) An application under clause 42 must, if it is in writing, be accompanied by an affidavit complying with this clause.

(2) The affidavit must set out the facts and other grounds on which the application is based.

46 Information to be given on telephone application

The information given to an issuing authority in connection with a telephone application under clause 42 to the issuing authority:

(a) must include particulars of the urgent circumstances because of which the person making the application on the enforcement 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, clause 44 or 45 would have required the application, or an affidavit accompanying it, to set out; and

47 Giving further information to issuing authority

(1) An issuing authority may require further information to be given in connection with an application under clause 42 to the issuing authority for an international production order.

(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.

Subdivision B—International production orders relating to telecommunications data

48 Issue of international production order—enforcement of the criminal law

Scope

(1) This clause applies if an enforcement agency applies, under clause 42, to an issuing authority for an international production order that is directed to a prescribed communications provider.

Issue of international production order

(2) If the issuing authority is satisfied, on the basis of the information given to the issuing authority under this Division in connection with the application, that:

(a) there are reasonable grounds for suspecting that the prescribed communications provider holds, or is likely to commence to hold, any of the following telecommunications data:

(i) telecommunications data that relates to communications carried by an individual transmission service supplied using a telecommunications network owned or operated by the prescribed communications provider;

(ii) telecommunications data that relates to an individual transmission service supplied using a telecommunications network owned or operated by the prescribed communications provider;

(iii) telecommunications data that relates to communications carried by an individual transmission service supplied by the prescribed communications provider;

(iv) telecommunications data that relates to an individual transmission service supplied by the prescribed communications provider;

(v) telecommunications data that relates to messages sent or received using an individual message/call application service provided by the prescribed communications provider;

(vi) telecommunications data that relates to voice calls made or received using an individual message/call application service provided by the prescribed communications provider;

(vii) telecommunications data that relates to video calls made or received using an individual message/call application service provided by the prescribed communications provider;

(viii) telecommunications data that relates to an individual message/call application service provided by the prescribed communications provider;

(ix) telecommunications data that relates to material that has been uploaded by an end‑user for storage or back‑up by a storage/back‑up service provided by the prescribed communications provider;

(x) telecommunications data that relates to material that has been posted on a general electronic content service provided by the prescribed communications provider; and

(b) Subdivision A has been complied with in relation to the application; and

(c) in the case of a telephone application—because of urgent circumstances, it was necessary to make the application by telephone; and

(d) disclosing the telecommunications data to the enforcement agency, under an order issued under this clause, would be likely to assist in connection with the investigation by the enforcement agency of a serious category 1 offence, or serious category 1 offences;

the issuing authority may issue an order (to be known as an international production order) directing the prescribed communications provider to do either or both of the following:

(e) so far as the telecommunications data is held by the prescribed communications provider when the international production order comes into force—disclose any such telecommunications data to the agency;

(f) so far as the telecommunications data commences to be held by the prescribed communications provider during a specified period—disclose any such telecommunications data to the agency.

Period specified in international production order

(3) A period specified in an international production order for the purposes of paragraph (2)(f) must not begin before the time when the order is given to the prescribed communications provider.

Note: International production orders are given under clause 111.

(4) A period specified in an international production order for the purposes of paragraph (2)(f) must not be longer than 90 days.

Matters to which issuing authority must have regard

(5) In deciding whether to issue an international production order under subclause (2), the issuing authority must have regard to the following matters:

(a) how much the privacy of any person or persons would be likely to be interfered with by disclosing, under an international production order, the telecommunications data;

(b) the gravity of the conduct constituting the serious category 1 offence or serious category 1 offences being investigated;

(c) how much the telecommunications data would be likely to assist in connection with the investigation by the enforcement agency of the serious category 1 offence or serious category 1 offences;

(d) to what extent methods of investigating the serious category 1 offence or serious category 1 offences that do not involve so disclosing the telecommunications data have been used by, or are available to, the enforcement agency;

(e) how much the use of such methods would be likely to assist in connection with the investigation by the enforcement agency of the serious category 1 offence or serious category 1 offences;

(f) how much the use of such methods would be likely to prejudice the investigation by the enforcement agency of the serious category 1 offence or serious category 1 offences, whether because of delay or for any other reason;

(g) such other matters (if any) as the issuing authority considers relevant.

49 Content of international production order

Scope

(1) This clause applies to an international production order issued under clause 48 in response to an application made by an enforcement agency.

Content

(2) The order must be signed by the issuing authority who issued it.

(3) The order must set out the following:

(a) the date on which the order was issued;

(b) the name of the enforcement agency;

(d) the name of the designated international agreement nominated in the application for the order;

(4) If the order directs a prescribed communications provider to disclose telecommunications data to the enforcement agency, the order may require the provider to disclose that data to the agency in a specified way.

(5) A requirement under subclause (4) may:

(a) require that the telecommunications data be disclosed to the enforcement agency directly; or

(b) require that the telecommunications data be disclosed to the enforcement agency indirectly via the Australian Designated Authority.

(6) For the purposes of this clause, a specified way may deal with matters of timing.

Example: If a requirement under subclause (4) relates to telecommunications data that commences to be held by a prescribed communications provider during a specified period, the requirement may require that the telecommunications data be disclosed to the enforcement agency within 30 minutes after the telecommunications data commences to be held.

50 Issue of further international production order

If:

(a) an international production order (the original order) was issued under clause 48; and

(b) the original order was directed to a prescribed communications provider; and

(c) the original order relates to the investigation by an enforcement agency of a serious category 1 offence, or serious category 1 offences;

this Schedule does not prevent the issue of a further international production order under clause 48 that:

(d) is directed to the provider; and

(e) relates to the investigation by the enforcement agency of that offence or those offences.

Part 3—International production orders relating to Part 5.3 supervisory orders

Division 1—Introduction

51 Simplified outline of this Part

• If a Part 5.3 supervisory order is in force in relation to a person, an international production order may be issued for purposes in connection with the monitoring of the person, so as to achieve a Part 5.3 object.

• There are 3 types of international production orders:

(a) international production orders relating to interception; and

(b) international production orders relating to stored communications; and

• An international production order is directed to a prescribed communications provider.

• An international production order may be issued in response to an application made by a Part 5.3 IPO agency.

• An application for an international production order must nominate a designated international agreement.

• If an international production order is issued in relation to an application made by a Part 5.3 IPO agency, the agency must notify the international production order to the Ombudsman.

Note: An international production order comes into force when it is given to a prescribed communications provider under clause 111.

Division 2—International production orders relating to interception: Part 5.3 supervisory orders

Subdivision A—Applications

52 Application for international production order—Part 5.3 supervisory order

(1) A Part 5.3 IPO agency may apply for an international production order under clause 60 that:

(a) is in respect of:

(i) one or more individual transmission services; or

(ii) one or more individual message/call application services; and

(b) is directed to a prescribed communications provider.

(1A) The Part 5.3 IPO agency may apply for the order to:

(a) for an application made by the National Anti‑Corruption Commission—an eligible Judge; or

(b) otherwise—an eligible Judge or nominated ART member.

(2) The application must nominate a designated international agreement.

(3) The application must be made on the Part 5.3 IPO agency’s behalf by:

(a) if the agency is referred to in subclause 22(3)—a person referred to in that subclause in relation to the 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 subclause (4).

(4) The chief officer of the Part 5.3 IPO agency may, in writing, nominate for the purposes of subparagraph (3)(b)(ii) an office or position in the agency that is involved in the management of the agency.

53 Form of application

(1) Subject to subclause (2), an application under clause 52 for an international production order must be in writing.

(2) If the person making an application under clause 52 for an international production order on a Part 5.3 IPO 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 subclause (3); and

(b) thinks it necessary, because of urgent circumstances, to make the application by telephone;

the person may make the application by telephone.

Note: See also clause 17A (urgent circumstances) and clause 172 (action required).

(3) The chief officer of a Part 5.3 IPO agency may authorise in writing, for the purposes of subclause (2), persons who, or classes of persons who, are entitled under clause 52 to make applications on the agency’s behalf.

54 Contents of application

A written application under clause 52 by a Part 5.3 IPO agency for an international production order must set out:

(a) the name of the agency; and

(b) the name of the person making the application on the agency’s behalf.

55 Affidavits to accompany written application

(1) A written application under clause 52 by a Part 5.3 IPO agency for an international production order must be accompanied by an affidavit complying with this clause.

(2) The affidavit must set out the facts and other grounds on which the application is based.

(a) the number of previous applications (if any) for international production orders that the agency has made under clause 52 in relation to those individual transmission services;

(b) the number of international production orders (if any) previously issued in response to such applications;

(c) particulars of the use made by the agency of intercepted communications made available to the agency under such orders.

(a) the number of previous applications (if any) for international production orders that the agency has made under clause 52 in relation to those individual message/call application services;

(b) the number of international production orders (if any) previously issued in response to such applications;

(c) particulars of the use made by the agency of intercepted messages, voice calls or video calls made available to the agency under such orders.

56 Information to be given on telephone application

The information given to an eligible Judge or nominated ART member in connection with a telephone application under clause 52 to the eligible Judge or nominated ART member:

(a) must include particulars of the urgent circumstances because of which the person making the application on the Part 5.3 IPO 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, clause 54 or 55 would have required the application, or an affidavit accompanying it, to set out; and

57 Giving further information to eligible Judge or nominated ART member

(1) An eligible Judge or nominated ART member may require further information to be given in connection with an application under clause 52 to the eligible Judge or nominated ART member for an international production order.

(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 eligible Judge or nominated ART member directs.

58 Application by Part 5.3 IPO agency of Victoria

Scope

(1) This clause applies if a Part 5.3 IPO agency of Victoria applies, under clause 52, to an eligible Judge or nominated ART member for an international production order under clause 60 that is in respect of:

(a) one or more individual transmission services; or

(b) one or more individual message/call application services.

PIM may make submissions

(2) A Victorian PIM may, orally or in writing, make submissions to the eligible Judge or nominated ART member about the following matters:

(a) in the case of an application for an international production order that is in respect of one or more individual transmission services—the matters mentioned in paragraphs 60(5)(a) to (gb) and paragraph 60(5)(j);

(b) in the case of an application for an international production order that is in respect of one or more individual message/call application services—the matters mentioned in paragraphs 60(6)(a) to (gb) and paragraph 60(6)(j).

PIM may question certain persons

(3) The Victorian PIM may, for the purpose of making submissions under subclause (2), question:

(a) the person making the application for the international production order on the Part 5.3 IPO agency’s behalf; or

(b) a person who, under clause 57, is required by the eligible Judge or nominated ART member to give further information to the eligible 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.

59 Application by Part 5.3 IPO agency of Queensland

Scope

(1) This clause applies if a Part 5.3 IPO agency of Queensland applies, under clause 52, to an eligible Judge or nominated ART member for an international production order under clause 60 that is in respect of:

(a) one or more individual transmission services; or

(b) one or more individual message/call application services.

PIM may make submissions

(2) A Queensland PIM may, orally or in writing, make submissions to the eligible Judge or nominated ART member about the following matters:

PIM may question certain persons

(3) The Queensland PIM may, for the purpose of making submissions under subclause (2), question:

(a) the person making the application for the international production order on the Part 5.3 IPO agency’s behalf; or

However, the Queensland PIM may only do so in the presence of the eligible Judge or nominated ART member.

(4) A Queensland PIM may, by writing, delegate to a Queensland deputy PIM the Queensland PIM’s power under subclause (2) or (3), or both.

(5) In exercising powers under the delegation, the Queensland deputy PIM must comply with any directions of the Queensland PIM.

Subdivision B—International production orders relating to interception

60 Issue of international production order—Part 5.3 supervisory order

Scope

(1) This clause applies if a Part 5.3 IPO agency applies, under clause 52, to an eligible Judge or nominated ART member for an international production order that:

(a) is in respect of:

(i) one or more individual transmission services; or

(ii) one or more individual message/call application services; and

(b) is directed to a prescribed communications provider.

Issue of international production order

(a) in the case of an application for an international production order that is in respect of one or more individual transmission services—there are reasonable grounds for suspecting that:

(i) the prescribed communications provider owns or operates a telecommunications network that is, or is likely to be, used to supply those individual transmission services; or

(ii) the prescribed communications provider supplies those individual transmission services; and

(d) in the case of a telephone application—because of urgent circumstances, it was necessary to make the application by telephone; and

(g) in the case of an application for an international production order that is in respect of one or more individual transmission services:

(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 those individual transmission services; and

(h) in the case of an application for an international production order that is in respect of one or more individual message/call application services:

(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 those individual message/call application services; and

(i) in the case of an application for an international production order that is in respect of one or more individual transmission services—information that would be likely to be obtained by accessing, under an order issued under this clause, communications that are being carried by those individual transmission services 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

(j) in the case of an application for an international production order that is in respect of one or more individual message/call application services—information that would be likely to be obtained by accessing, under an order issued under this clause, messages sent or received, voice calls made or received, or video calls made or received, using those individual message/call application services 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;

the eligible Judge or nominated ART member may issue an order (to be known as an international production order) directing the prescribed communications provider to:

(k) in the case of an application for an international production order that is in respect of one or more individual transmission services:

(i) intercept communications carried by those individual transmission services during a specified period; and

(ii) make those intercepted communications available to the Part 5.3 IPO agency; and

(iii) disclose to the Part 5.3 IPO agency specified telecommunications data that relates to those intercepted communications; and

(iv) disclose to the Part 5.3 IPO agency specified telecommunications data that relates to those individual transmission services; or

(l) in the case of an application for an international production order that is in respect of one or more individual message/call application services:

(i) intercept messages sent or received, voice calls made or received, or video calls made or received, using those individual message/call application services during a specified period; and

(ii) make those intercepted messages, voice calls or video calls available to the Part 5.3 IPO agency; and

(iii) disclose to the Part 5.3 IPO agency specified telecommunications data that relates to those intercepted messages, voice calls or video calls; and

(iv) disclose to the Part 5.3 IPO agency specified telecommunications data that relates to those individual message/call application services.

Note 1: Part 5.3 of the Criminal Code creates offences relating to terrorist acts.

Note 2: Part 5.5 of the Criminal Code creates offences relating to engaging in a hostile activity in a foreign country.

Note 3: Sections 104.27 and 105A.18A of the Criminal Code create offences for contravening Part 5.3 supervisory orders.

Note 4: Subclauses (7) and (8) restrict the issuing of international production orders if subparagraph (2)(g)(ii) or (h)(ii) applies.

Period specified in international production order

(3) A period specified in an international production order for the purposes of subparagraph (2)(k)(i) or (l)(i) must not begin before the time when the order is given to the prescribed communications provider.

Note: International production orders are given under clause 111.

(4) The period specified in an international production order for the purposes of subparagraph (2)(k)(i) or (l)(i) must not be longer than:

(a) if subparagraph (2)(g)(ii) or (h)(ii) applies (as the case requires)—45 days; or

(b) otherwise—90 days.

Matters to which eligible Judge or nominated ART member must have regard

(5) In deciding whether to issue an international production order under subclause (2) (in the case of an application for an international production order that is in respect of one or more individual transmission services), the eligible Judge or nominated ART member must have regard to the following matters:

(a) how much the privacy of any person or persons would be likely to be interfered with by accessing, under an international production order, communications that are being carried by those individual transmission services;

(b) how much the information referred to in paragraph (2)(i) 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;

(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 accessing communications have been used by, or are available to, the agency;

(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;

(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;

(f) whether accessing, under an international production order, communications carried by those individual transmission services would be the method that is likely to have the least interference with any person’s privacy;

(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;

(ga) in relation to a Part 5.3 supervisory order that is an extended supervision order or an 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;

(gb) in relation to any Part 5.3 supervisory order—the possibility that the person in relation to whom the Part 5.3 supervisory 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;

(h) in relation to an application by a Part 5.3 IPO agency of Victoria—any submissions made by a Victorian PIM under clause 58 to the eligible Judge or nominated ART member;

(i) in relation to an application by a Part 5.3 IPO agency of Queensland—any submissions made by a Queensland PIM under clause 59 to the eligible Judge or nominated ART member;

(j) such other matters (if any) as the eligible Judge or nominated ART member considers relevant.

(6) In deciding whether to issue an international production order under subclause (2) (in the case of an application for an international production order that is in respect of one or more individual message/call application services), the eligible Judge or nominated ART member must have regard to the following matters:

(a) how much the privacy of any person or persons would be likely to be interfered with by accessing, under an international production order, messages sent or received, voice calls made or received, or video calls made or received, using those individual message/call application services;

(b) how much the information referred to in paragraph (2)(j) 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;

(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 accessing messages, voice calls or video calls have been used by, or are available to, the agency;

(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;

(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;

(f) whether accessing, under an international production order, messages sent or received, voice calls made or received, or video calls made or received, using those individual message/call application services would be the method that is likely to have the least interference with any person’s privacy;