Telecommunications Act 1997

The following is a simplified outline of this Part:

• The ACMA, carriers and carriage service providers must do their best to prevent telecommunications networks and facilities from being used to commit offences.

• Carriers and carriage service providers have a duty to do their best to protect telecommunications networks and facilities from unauthorised interference, or unauthorised access, for the purposes of security. Carriers and certain carriage service providers must notify changes to telecommunications services or telecommunications systems that are likely to have a material adverse effect on their capacity to comply with this duty.

• The ACMA, carriers and carriage service providers must give the authorities such help as is reasonably necessary for the purposes of:

(a) enforcing the criminal law and laws imposing pecuniary penalties; and

(b) protecting the public revenue; and

• A carriage service provider may suspend the supply of a carriage service in an emergency if requested to do so by a senior police officer.

• The Home Affairs Minister may give directions to a carrier or a carriage service provider in certain circumstances where certain activities may be prejudicial to security.

• The Home Affairs Secretary may obtain information from carriers, carriage service providers and carriage service intermediaries if the information is relevant to assessing compliance with the duty of those persons to protect telecommunications networks and facilities from unauthorised interference or unauthorised access.

Division 2—Obligations of ACMA and carriers and carriage service providers

312 ACMA’s obligations

(1) The ACMA must, in performing its telecommunications functions or exercising its telecommunications powers, do its best to prevent:

(a) telecommunications networks; and

(b) facilities;

from being used in, or in relation to, the commission of offences against the laws of the Commonwealth and of the States and Territories.

(2) The ACMA must, in performing its telecommunications functions or exercising its telecommunications powers, give officers and authorities of the Commonwealth and of the States and Territories such help as is reasonably necessary for the following purposes:

(a) enforcing the criminal law and laws imposing pecuniary penalties;

(b) protecting the public revenue;

(3) The ACMA is not liable to an action or other proceeding for damages for or in relation to an act done or omitted in good faith in performance of the duty imposed by subsection (1) or (2).

(4) An officer, employee or agent of the ACMA is not liable to an action or other proceeding for damages for or in relation to an act done or omitted in good faith in connection with an act done or omitted by the ACMA as mentioned in subsection (3).

313 Obligations of carriers and carriage service providers

(1) A carrier or carriage service provider must, in connection with:

(a) the operation by the carrier or provider of telecommunications networks or facilities; or

(b) the supply by the carrier or provider of carriage services;

do the carrier’s best or the provider’s best to prevent telecommunications networks and facilities from being used in, or in relation to, the commission of offences against the laws of the Commonwealth or of the States and Territories.

(1A) For the purposes of security (within the meaning of the Australian Security Intelligence Organisation Act 1979), a carrier or carriage service provider must, in connection with:

(a) the operation by the carrier or provider of telecommunications networks or facilities; or

(b) the supply by the carrier or provider of carriage services;

do the carrier’s best or the provider’s best to protect telecommunications networks and facilities owned, operated or used by the carrier or provider from unauthorised interference or unauthorised access to ensure:

(c) the confidentiality of communications carried on, and of information contained on, telecommunications networks or facilities; and

(d) the availability and integrity of telecommunications networks and facilities.

Note 1: Security, among other things, covers the protection of, and of the people of, the Commonwealth and the States and Territories from espionage, sabotage, attacks on Australia’s defence system and acts of foreign interference.

Note 2: A person who uses a carriage service to supply various kinds of broadcasting services is not a carriage service provider merely because of that use (and therefore not subject to the duty imposed by this subsection): see subsections 87(1) and (2) and 93(1) and (2).

(1B) Without limiting subsection (1A), the duty imposed by that subsection includes the requirement for the carrier or carriage service provider to maintain competent supervision of, and effective control over, telecommunications networks and facilities owned or operated by the carrier or provider.

(2) A carriage service intermediary must do the intermediary’s best to prevent telecommunications networks and facilities from being used in, or in relation to, the commission of offences against the laws of the Commonwealth or of the States and Territories.

(2A) For the purposes of security (within the meaning of the Australian Security Intelligence Organisation Act 1979), a carriage service intermediary must do the intermediary’s best to protect telecommunications networks and facilities used to supply the carriage service referred to in subsection 87(5) from unauthorised interference or unauthorised access to ensure:

(a) the confidentiality of communications carried on, and of information contained on, telecommunications networks or facilities; and

(b) the availability and integrity of telecommunications networks and facilities.

Note: Security, among other things, covers the protection of, and of the people of, the Commonwealth and the States and Territories from espionage, sabotage, attacks on Australia’s defence system and acts of foreign interference.

(3) A carrier or carriage service provider must, in connection with:

(a) the operation by the carrier or provider of telecommunications networks or facilities; or

(b) the supply by the carrier or provider of carriage services;

give officers and authorities of the Commonwealth and of the States and Territories such help as is reasonably necessary for the following purposes:

(ca) assisting the enforcement of the criminal laws in force in a foreign country;

(cb) assisting the investigation and prosecution of:

(i) crimes within the jurisdiction of the ICC (within the meaning of the International Criminal Court Act 2002); and

(ii) Tribunal offences (within the meaning of the International War Crimes Tribunals Act 1995);

(d) protecting the public revenue;

(e) safeguarding national security.

Note: Section 314 deals with the terms and conditions on which such help is to be provided.

(4) A carriage service intermediary who arranges for the supply by a carriage service provider of carriage services must, in connection with:

(a) the operation by the provider of telecommunications networks or facilities; or

(b) the supply by the provider of carriage services;

give officers and authorities of the Commonwealth and of the States and Territories such help as is reasonably necessary for the following purposes:

(ca) assisting the enforcement of the criminal laws in force in a foreign country;

(cb) assisting the investigation and prosecution of:

(i) crimes within the jurisdiction of the ICC (within the meaning of the International Criminal Court Act 2002); and

(ii) Tribunal offences (within the meaning of the International War Crimes Tribunals Act 1995);

(d) protecting the public revenue;

(e) safeguarding national security.

Note: Section 314 deals with the terms and conditions on which such help is to be provided.

(4A) A carrier or carriage service provider must, in connection with:

(a) the operation by the carrier or provider of telecommunications networks or facilities; or

(b) the supply by the carrier or provider of carriage services;

give officers and authorities of the Commonwealth and of the States and Territories such help as is reasonably necessary for the following purposes:

(c) if a national emergency declaration (within the meaning of the National Emergency Declaration Act 2020) is in force—preparing for, responding to or recovering from an emergency to which the declaration relates;

(d) preparing for, responding to or recovering from a disaster or emergency that has been declared to be a disaster or a state of emergency (as the case may be) by or with the approval of a Minister of a State or Territory under the law of the State or Territory;

(e) if a declaration made for the purpose of subsection (4D) is in force—preparing for, responding to or recovering from an emergency to which the declaration relates.

Note: Section 314 deals with the terms and conditions on which such help is to be provided.

(4B) A carriage service intermediary who arranges for the supply by a carriage service provider of carriage services must, in connection with:

(a) the operation by the provider of telecommunications networks or facilities; or

(b) the supply by the provider of carriage services;

give officers and authorities of the Commonwealth and of the States and Territories such help as is reasonably necessary for the following purposes:

(e) if a declaration made for the purpose of subsection (4D) is in force—preparing for, responding to or recovering from an emergency to which the declaration relates.

Note: Section 314 deals with the terms and conditions on which such help is to be provided.

(4C) Subsections (4A) and (4B) do not limit subsection (3) or (4).

(4D) The Minister may, in writing, declare that an emergency exists for the purposes of this subsection.

(4E) The Minister must publish, by electronic or other means, a copy of the declaration made under subsection (4D) as soon as practicable after making the declaration.

(4F) A declaration made under subsection (4D) is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the declaration.

(4G) In requiring help for the purposes of subsection (4A) or (4B), the officer or authority of the Commonwealth, State or Territory making the requirement must have regard to any guidelines in force under subsection (4H).

(4H) The Minister may, by legislative instrument, formulate guidelines for the purposes of subsection (4G).

(5) A carrier or carriage service provider is not liable to an action or other proceeding for damages for or in relation to an act done or omitted in good faith:

(a) in performance of the duty imposed by subsection (1), (1A), (2), (2A), (3), (4), (4A) or (4B); or

(b) in compliance with a direction that the ACMA gives in good faith in performance of its duties under section 312; or

(6) An officer, employee or agent of a carrier or of a carriage service provider is not liable to an action or other proceeding for damages for or in relation to an act done or omitted in good faith in connection with an act done or omitted by the carrier or provider as mentioned in subsection (5).

(7) A reference in this section to giving help includes a reference to giving help by way of:

(a) the provision of interception services, including services in executing an interception warrant under the Telecommunications (Interception and Access) Act 1979; or

(b) giving effect to a stored communications warrant under that Act; or

(i) any communication that is lawfully intercepted under such an interception warrant; or

(ii) any communication that is lawfully accessed under such a stored communications warrant; or

(caa) giving effect to authorisations under section 31A of that Act; or

(ca) complying with a domestic preservation notice or a foreign preservation notice that is in force under Part 3‑1A of that Act; or

(d) giving effect to authorisations under Division 3 or 4 of Part 4‑1 of that Act; or

(e) disclosing information or a document in accordance with section 280 of this Act.

Note: Additional obligations concerning interception capability and delivery capability are, or may be, imposed on a carrier or carriage service provider under Chapter 5 of the Telecommunications (Interception and Access) Act 1979.

314 Terms and conditions on which help is to be given

(1) This section applies if a person is required to give help to an officer or authority of the Commonwealth, a State or a Territory as mentioned in subsection 313(3), (4), (4A) or (4B).

(2) The person must comply with the requirement on the basis that the person neither profits from, nor bears the costs of, giving that help.

(3) The person must comply with the requirement on such terms and conditions as are:

(a) agreed between the following parties:

(i) the person;

(ii) the Commonwealth, the State or the Territory, as the case may be; or

(b) failing agreement, determined by an arbitrator appointed by the parties.

If the parties fail to agree on the appointment of an arbitrator, the ACMA is to appoint the arbitrator.

(4) An arbitrator appointed by the ACMA under subsection (3) must be a person specified in a written determination made by the Minister.

Note: A person may be specified by name, by inclusion in a specified class or in any other way.

(5) Before making a determination under subsection (4), the Minister must consult the Attorney‑General.

(6) If an arbitration under this section is conducted by an arbitrator appointed by the ACMA, the cost of the arbitration must be apportioned equally between the parties.

(7) The regulations may make provision for and in relation to the conduct of an arbitration under this section.

(8) This section does not apply in relation to the obligation of carriers or carriage service providers under Part 5‑1A, 5‑3 or 5‑5 of the Telecommunications (Interception and Access) Act 1979 (about data retention, interception capability and delivery capability).

Note: Part 5‑6 of the Telecommunications (Interception and Access) Act 1979 contains provisions about the allocation of costs in relation to interception capability and delivery capability.

Division 3—Notification of changes to telecommunications services or telecommunications systems relating to obligation under subsection 313(1A) or (2A)

Subdivision A—Individual notifications

314A Individual notifications

(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 subsection 313(1A) or (2A).

Kinds of changes

(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 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 applies in relation to the carrier or provider accessed by persons outside Australia;

(f) the carrier or carriage service provider entering into arrangements to have all or some information or documents to which subsection 187A(1) of the Telecommunications (Interception and Access) Act 1979 applies in relation to the carrier or provider kept outside Australia.

(2A) Subsection (1) does not apply to changes to a telecommunications service or a telecommunications system that are changes determined in an instrument under subsection (2B).

(2B) The Communications Access Co‑ordinator may, by legislative instrument, make a determination for the purposes of subsection (2A).

Note: For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901.

Notification of change

(3) The carrier or provider must notify the Communications Access Co‑ordinator, in writing, of its intention to implement the proposed change. The notification must include a description of the proposed change.

Exemptions

(4) The Communications Access Co‑ordinator may, by notice in writing given to a carrier or a nominated carriage service provider, exempt the carrier or provider from the operation of this section.

Note: For revocation, see subsection 33(3) of the Acts Interpretation Act 1901.

(5) The Communications Access Co‑ordinator may, by notice in writing given to a carrier or a nominated carriage service provider, exempt the carrier or provider from the operation of this section in relation to changes specified in the notice.

Note: For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901.

(5A) The Communications Access Co‑ordinator may grant an exemption under subsection (4) or (5) on his or her own initiative or on written application by a carrier or a nominated carriage service provider.

(5B) If a carrier or a nominated carriage service provider makes such an application, the Communications Access Co‑ordinator must, within 60 days of receiving the application, either:

(a) give the carrier or provider an exemption under subsection (4) or (5); or

(b) give the carrier or provider a notice in writing refusing the application, including setting out the reasons for the refusal.

(5C) Applications may be made to the Administrative Appeals Tribunal for review of a decision of the Communications Access Co‑ordinator under paragraph (5B)(b) to refuse an application.

(6) An exemption under subsection (4) or (5) has effect accordingly.

(6A) An exemption under subsection (4) or (5) may specify the period during which it is to remain in force. The exemption remains in force for that period unless it is revoked earlier or it ceases to be in force as mentioned in subsection (6B).

(6B) An exemption under subsection (4) or (5) may be given subject to conditions specified in the exemption. The exemption ceases to be in force if the carrier or nominated carriage service provider breaches a condition.

(7) An exemption under subsection (4) or (5) is not a legislative instrument.

314B Assessment of proposed change

Further information

(1) If:

(a) under subsection 314A(3), a carrier or a nominated carriage service provider notifies the Communications Access Co‑ordinator of a proposed change; and

(b) the Co‑ordinator considers that further information, in relation to the proposed change, is required for the Co‑ordinator to assess whether there is a risk of unauthorised interference with, or unauthorised access to, telecommunications networks or facilities that would be prejudicial to security;

the Co‑ordinator may, by notice in writing given to the carrier or provider, set out the further information the Co‑ordinator requires.

(2) A notice under subsection (1) must be given to the carrier or provider within 30 days of the notification of the proposed change to the Communications Access Co‑ordinator.

Assessment of proposed change

(3) If:

(a) the Communications Access Co‑ordinator considers a proposed change notified under subsection 314A(3) (including a proposed change where further information is provided as mentioned in this section); and

(b) in relation to the proposed change, the Co‑ordinator is satisfied that there is a risk of unauthorised interference with, or unauthorised access to, telecommunications networks or facilities that would be prejudicial to security;

the Co‑ordinator must give a written notice to the carrier or provider:

(d) setting out the duty imposed by subsection 313(1A) or (2A); and

(e) setting out the consequences for the carrier or provider for not complying with that duty.

(4) A notice under subsection (3) may also set out the measures the Communications Access Co‑ordinator considers the carrier or provider could adopt to eliminate or reduce the risk referred to in subsection (3).

(5) If:

(b) in relation to the proposed change, the Co‑ordinator is satisfied that there is not a risk of unauthorised interference with, or unauthorised access to, telecommunications networks or facilities that would be prejudicial to security;

the Co‑ordinator must give a written notice to the carrier or provider to that effect.

(6) In response to a proposed change notified to the Communications Access Co‑ordinator under subsection 314A(3), a notice must be given to the carrier or provider:

(a) within 30 days of the notification; or

(b) if under subsection (1) the Communications Access Co‑ordinator sought further information from the carrier or provider—as soon as practicable and no later than 30 days after the carrier or provider gave that further information.

The notice must be a notice under subsection (3) or (5).

Definitions

(7) In this section:

security has the same meaning as in the Australian Security Intelligence Organisation Act 1979.

Subdivision B—Security capability plans

314C Security capability plans

(1) A carrier or a nominated carriage service provider may give the Communications Access Co‑ordinator a written instrument (a security capability plan) under this section.

(2) A security capability plan may set out one or more changes to a telecommunications service or a telecommunications system the carrier or provider proposes to implement in the future that are likely to have a material adverse effect on the capacity of the carrier or provider to comply with its obligations under subsection 313(1A) or (2A).

(3) A security capability plan may set out the time each of the changes is proposed to be implemented.

Kinds of changes

(4) For the purposes of subsection (2), a change to a telecommunications service or a telecommunications system includes (but is not limited to):

(a) changes referred to in subsection 314A(2); and

(b) changes determined in an instrument under subsection (5) of this section.

(5) The Communications Access Co‑ordinator may, by legislative instrument, determine changes for the purposes of paragraph (4)(b).

Other matters plan may include

(6) A security capability plan may set out the carrier’s or provider’s practices, policies or strategies to comply with its obligations under subsection 313(1A) or (2A).

(7) A security capability plan may set out the measures the carrier or provider is implementing, or proposing to implement, to mitigate the risk of unauthorised interference with, or unauthorised access to, telecommunications networks or facilities.

One instrument each 12‑month period

(8) A carrier or a nominated carriage service provider cannot give more than one instrument under this section in any 12‑month period.

314D Assessment of security capability plan

Further information

(1) If:

(a) a carrier or a nominated carriage service provider gives the Communications Access Co‑ordinator a security capability plan setting out one or more proposed changes mentioned in subsection 314C(2); and

(b) the Co‑ordinator considers that further information, in relation to a particular proposed change, is required for the Co‑ordinator to assess whether there is a risk of unauthorised interference with, or unauthorised access to, telecommunications networks or facilities that would be prejudicial to security;

the Co‑ordinator may, by notice in writing given to the carrier or provider, set out the further information the Co‑ordinator requires.

(2) A notice under subsection (1) must be given to the carrier or provider within 60 days of the plan being given to the Communications Access Co‑ordinator.

Assessment of proposed change

(3) If:

(a) the Communications Access Co‑ordinator considers a particular proposed change mentioned in subsection 314C(2) that is set out in a security capability plan (including a proposed change where further information is provided as mentioned in this section); and

the Co‑ordinator must give a written notice to the carrier or provider:

(d) setting out the duty imposed by subsection 313(1A) or (2A); and

(e) setting out the consequences for the carrier or provider for not complying with that duty.

(5) If:

the Co‑ordinator must give a written notice to the carrier or provider to that effect.

(6) In response to a proposed change mentioned in subsection 314C(2) that is set out in a security capability plan, a notice must be given to the carrier or provider:

(a) within 60 days of the plan being given to the Communications Access Co‑ordinator; or

(b) if under subsection (1) the Communications Access Co‑ordinator sought further information from the carrier or provider—as soon as practicable and no later than 60 days after the carrier or provider gave that further information.

The notice must be a notice under subsection (3) or (5) and may relate to one or more such changes.

Definitions

(7) In this section:

security has the same meaning as in the Australian Security Intelligence Organisation Act 1979.

314E Relationship with section 314A

Dual notifications not required

(1) If, under section 314C, a carrier or a nominated carriage service provider has given a security capability plan setting out one or more proposed changes mentioned in subsection 314C(2), the carrier or provider is not required to notify those proposed changes under section 314A.

Certain modifications to changes are changes in their own right

(2) If:

(a) under section 314C, a carrier or a nominated carriage service provider has given a security capability plan setting out one or more proposed changes mentioned in subsection 314C(2); and

(b) the carrier or provider becomes aware that the implementation by the carrier or provider of any modification to such a proposed change is likely to have a material adverse effect on the capacity of the carrier or provider to comply with its obligations under subsection 313(1A) or (2A);

then section 314A applies in relation to the modification as if the modification were a change in its own right.

Division 4—Carriage service provider may suspend supply of carriage service in an emergency

315 Suspension of supply of carriage service in an emergency

(1) If a senior officer of a police force or service has reasonable grounds to believe that:

(a) an individual has access to a particular carriage service; and

(b) the individual has:

(i) done an act that has resulted, or is likely to result, in loss of life or in the infliction of serious personal injury; or

(ii) made an imminent threat to kill, or seriously injure, another person; or

(iii) made an imminent threat to cause serious damage to property; or

(iv) made an imminent threat to take the individual’s own life; or

(v) made an imminent threat to do an act that will, or is likely to, endanger the individual’s own life or create a serious threat to the individual’s health or safety; and

(i) prevent a recurrence of the act mentioned in subparagraph (b)(i); or

(ii) prevent or reduce the likelihood of the carrying out of a threat mentioned in subparagraph (b)(ii), (iii), (iv) or (v);

the officer may request a carriage service provider to suspend the supply of the carriage service.

(2) The carriage service provider may comply with the request.

(3) This section does not, by implication, limit any other powers that the provider may have to suspend the supply of the carriage service.

(3A) The provider is not liable to an action or other proceeding for damages for or in relation to an act done or omitted in good faith in compliance with the request.

(3B) An officer, employee or agent of the provider is not liable to an action or other proceeding for damages for or in relation to an act done or omitted in good faith in connection with an act done or omitted by the provider as mentioned in subsection (3A).

(4) In this section:

senior officer, in relation to a police force or service, means a commissioned officer of the force or service who holds a rank not lower than the rank of Assistant Commissioner.

Division 5—Directions by Home Affairs Minister

315A Direction if use or supply of carriage services prejudicial to security

(1) If:

(a) a person who is a carrier or carriage service provider proposes to use, or uses, for the person’s own requirements or benefit, or proposes to supply, or supplies, to another person, one or more carriage services; and

(b) the Home Affairs Minister, after consulting the Prime Minister and the Minister administering this Act, considers that the proposed use or supply would be, or the use or supply is, as the case may be, prejudicial to security;

the Home Affairs Minister may give the carrier or carriage service provider a written direction not to use or supply, or to cease using or supplying, the carriage service or the carriage services.

(2) A direction under subsection (1) must relate to a carriage service generally and cannot be expressed to apply to the supply of a carriage service to a particular person, particular persons or a particular class of persons.

Direction to be given after adverse security assessment

(3) The Home Affairs Minister must not give a carrier or carriage service provider a direction under subsection (1) unless an adverse security assessment in respect of the carrier or carriage service provider is given to the Home Affairs Minister in connection with this section.

Copy of direction to be given to ACMA

(4) The Home Affairs Minister must give the ACMA a copy of any direction under subsection (1).

Compliance with direction

(5) A person must comply with a direction given to the person under subsection (1).

Definitions

(6) In this section:

security has the same meaning as in the Australian Security Intelligence Organisation Act 1979.

315B Direction if risk of unauthorised interference or access involving telecommunications networks or facilities

(1) This section applies if, in connection with:

(a) the operation by a carrier or carriage service provider of telecommunications networks or facilities; or

(b) the supply by a carrier or carriage service provider of a carriage service; or

(c) the supply by a carriage service provider of a carriage service, being a supply arranged by a carriage service intermediary;

the Home Affairs Minister is satisfied that there is a risk of unauthorised interference with, or unauthorised access to, telecommunications networks or facilities that would be prejudicial to security.

(2) The Home Affairs Minister may give a carrier, carriage service provider or carriage service intermediary a written direction requiring the carrier, provider or intermediary to do, or to refrain from doing, a specified act or thing within the period specified in the direction.

(3) A direction under subsection (2) may be given only if the Home Affairs Minister is satisfied that requiring the carrier, carriage service provider or carriage service intermediary to do, or to refrain from doing, the specified act or thing is reasonably necessary for purposes relating to eliminating or reducing the risk referred to in subsection (1).

Direction to be given after adverse security assessment

(4) The Home Affairs Minister must not give a carrier, carriage service provider or carriage service intermediary a direction under subsection (2) unless an adverse security assessment in respect of the carrier, provider or intermediary is given to the Home Affairs Minister in connection with this section.

Direction to be given after negotiations in good faith

(5) The Home Affairs Minister must not give a carrier, carriage service provider or carriage service intermediary a direction under subsection (2) unless the Home Affairs Minister is satisfied that reasonable steps have been taken to negotiate in good faith with the carrier, provider or intermediary to achieve an outcome of eliminating or reducing the risk referred to in subsection (1).

Matters to which regard must be had before giving direction

(6) Before giving a carrier, carriage service provider or carriage service intermediary a direction under subsection (2), the Home Affairs Minister must have regard to the following matters:

(a) the adverse security assessment mentioned in subsection (4);

(b) the costs, in complying with any direction, that would be likely to be incurred by the carrier, provider or intermediary;

(d) the potential consequences that any direction may have on customers of the carrier, provider or intermediary.

The Home Affairs Minister must give the greatest weight to the matter mentioned in paragraph (a).

(7) Subsection (6) does not limit the matters to which regard may be had.

Consultation

(8) Before giving a carrier, carriage service provider or carriage service intermediary a direction under subsection (2), the Home Affairs Minister must:

(a) consult the Minister administering this Act; and

(b) do the following:

(i) by written notice, given to the carrier, provider or intermediary, set out the proposed direction;

(ii) in that notice, invite the carrier, provider or intermediary to make written representations to the Home Affairs Minister in relation to the proposed direction within the period specified in the notice;

(iii) have regard to any such representations made within that period.

(9) For the purposes of subparagraph (8)(b)(ii), the period to be specified in the notice must be at least 28 days after the notice is given. However, the Home Affairs Minister may specify a shorter period if the Home Affairs Minister considers it necessary to do so because of urgent circumstances.

(10) Subsection (8) does not limit the persons with whom the Home Affairs Minister may consult.

Copy of direction to be given to ACMA

(11) The Home Affairs Minister must give the ACMA a copy of any direction under subsection (2).

Compliance with direction

(12) A person must comply with a direction given to the person under subsection (2).

Definitions

(13) In this section:

security has the same meaning as in the Australian Security Intelligence Organisation Act 1979.

Division 6—Home Affairs Secretary’s information‑gathering powers

315C Home Affairs Secretary may obtain information and documents from carriers and carriage service providers

(1) This section applies to a carrier, carriage service provider or carriage service intermediary if the Home Affairs Secretary has reason to believe that the carrier, provider or intermediary has information or a document that is relevant to assessing compliance with the duty imposed by subsection 313(1A) or (2A).

(2) The Home Affairs Secretary may, by written notice given to the carrier, provider or intermediary, require the carrier, provider or intermediary:

(a) to give to that Secretary, within the period and in the manner and form specified in the notice, any such information; or

(b) to produce to that Secretary, within the period and in the manner specified in the notice, any such documents; or

(c) to make copies of any such documents and to produce to that Secretary, within the period and in the manner specified in the notice, those copies.

(3) The carrier, provider or intermediary must comply with a requirement under subsection (2).

Matters to which regard must be had before giving notice

(4) Before giving a carrier, carriage service provider or carriage service intermediary a notice under subsection (2), the Home Affairs Secretary must have regard to the costs, in complying with any requirement in the notice, that would be likely to be incurred by the carrier, provider or intermediary.

(5) Subsection (4) does not limit the matters to which regard may be had.

Content of notice

(6) A notice given to a carrier under this section must set out the effect of the following provisions:

(a) subsection (3);

(b) section 68;

(d) Part 1 of Schedule 1;

(e) sections 137.1 and 137.2 of the Criminal Code (false or misleading information or documents).

(7) A notice given to a carriage service provider or carriage service intermediary under this section must set out the effect of the following provisions:

(a) subsection (3);

(b) section 101;

(d) Part 1 of Schedule 2;

(e) sections 137.1 and 137.2 of the Criminal Code (false or misleading information or documents).

Copying documents—reasonable compensation

(8) A carrier, carriage service provider or carriage service intermediary is entitled to be paid by the Commonwealth reasonable compensation for complying with a requirement covered by paragraph (2)(c).

315D Self‑incrimination

(1) A person is not excused from giving information or producing a document or a copy of a document under section 315C on the ground that the information or the production of the document or copy might tend to incriminate the person or expose the person to a penalty.

(2) However, in the case of an individual:

(a) the information given or the document or copy produced; or

(b) giving the information or producing the document or copy; or

(c) any information, document or thing obtained as a direct or indirect consequence of giving the information or producing the document or copy;

is not admissible in evidence against the individual:

(d) in criminal proceedings other than proceedings for an offence against section 137.1 or 137.2 of the Criminal Code that relates to this Division; or

(e) in civil proceedings other than proceedings under section 570 for recovery of a penalty in relation to a contravention of subsection 315C(3).

315E Copies of documents

(1) The Home Affairs Secretary may inspect a document or copy produced under section 315C and may make and retain copies of such a document.

(2) The Home Affairs Secretary may retain possession of a copy of a document produced in accordance with a requirement covered by paragraph 315C(2)(c).

315F Retention of documents

(1) The Home Affairs Secretary may take, and retain for as long as is necessary, possession of a document produced under section 315C.

(2) The person otherwise entitled to possession of the document is entitled to be supplied, as soon as practicable, with a copy certified by the Home Affairs Secretary to be a true copy.

(3) The certified copy must be received in all courts and tribunals as evidence as if it were the original.

(4) Until a certified copy is supplied, the Home Affairs Secretary must, at such times and places as he or she thinks appropriate, permit the person otherwise entitled to possession of the document, or a person authorised by that person, to inspect and make copies of the document.

315G Delegation by Home Affairs Secretary

(1) The Home Affairs Secretary may, in writing, delegate any or all of his or her powers and functions under sections 315C, 315E and 315F to the Director‑General of Security.

(2) In exercising a power or performing a function under a delegation under subsection (1), the Director‑General of Security must comply with any directions of the Home Affairs Secretary.

Division 7—Information sharing and confidentiality

315H Information sharing and confidentiality

(1) A person who obtains information or a document under section 314A, 314B, 314C, 314D, 315C or this subsection may disclose any of that information, or provide the document (or a copy of it), to another person for any of the following purposes:

(a) the assessment of the risk of unauthorised interference with, or unauthorised access to, telecommunications networks or facilities and, if there is such a risk, the assessment of the risk to security;

(b) the purposes of security;

Note: The Privacy Act 1988 applies to the disclosure of personal information.

Limitation

(2) However, if a person obtains information or a document under section 314A, 314B, 314C, 314D, 315C or subsection (1) of this section, the person must not disclose any of that information, or provide the document (or a copy of it), to a person who is not a Commonwealth officer, to the extent that the information is identifying information or that the document (or a copy of it) contains identifying information.

Confidentiality

(3) Subject to this section, a person who obtains information or a document under section 314A, 314B, 314C, 314D, 315C or this section must treat the information or document as confidential.

Definitions

(4) In this section:

Commonwealth officer means:

(a) a person who is in the employment of the Commonwealth, other than a person who is engaged outside Australia to perform duties outside Australia as an employee; or

(b) a person who holds or performs the duties of any office or position established by or under a law of the Commonwealth; or

(d) the Commissioner of the Australian Federal Police, a Deputy Commissioner of the Australian Federal Police, an AFP employee, a special member or a special protective service officer (all within the meaning of the Australian Federal Police Act 1979).

Note: Paragraph (a) of this definition covers, for example, persons employed by the Director‑General of Security, on behalf of the Commonwealth, under subsection 84(1) of the Australian Security Intelligence Organisation Act 1979.

identifying information means information that identifies the carrier, carriage service provider or carriage service intermediary concerned.

security has the same meaning as in the Australian Security Intelligence Organisation Act 1979.

Division 8—Annual report

315J Annual report

(1) The Home Affairs Secretary must report each financial year to the Home Affairs Minister on the operation of this Part, to the extent that this Part was amended by the Telecommunications and Other Legislation Amendment Act 2017.

(1A) Without limiting subsection (1), a report under that subsection for a financial year must include the following information for that year:

(a) the number of directions the Home Affairs Minister gave under subsection 315A(1);

(b) the number of directions the Home Affairs Minister gave under subsection 315B(2);

(i) the number of notifications the Communications Access Co‑ordinator received under subsection 314A(3);

(ii) in response to such notifications, the average number of days taken by the Co‑ordinator to give a notice under subsection 314B(3) or (5);

(iii) in response to such notifications, the percentage of notices given within the period under subsection 314B(6) by the Co‑ordinator under subsection 314B(3) or (5);

(d) the following:

(i) the number of applications the Communications Access Co‑ordinator received under subsection 314A(5A);

(ii) in response to such applications, the average number of days taken by the Co‑ordinator to give a notice under subsection 314A(4) or (5) or paragraph 314A(5B)(b);

(iii) in response to such applications, the percentage of notices given within the period under subsection 314A(5B) by the Co‑ordinator under subsection 314A(4) or (5) or paragraph 314A(5B)(b);

(e) the following:

(i) the number of security capability plans the Communications Access Co‑ordinator received under subsection 314C(1);

(ii) in response to such plans, the average number of days taken by the Co‑ordinator to give a notice under subsection 314D(3) or (5);

(iii) in response to such plans, the percentage of notices given within the period under subsection 314D(6) by the Co‑ordinator under subsection 314D(3) or (5);

(f) the number of notices the Home Affairs Secretary gave under subsection 315C(2);

(g) details of the information sharing arrangements between the Commonwealth and carriers and carriage service providers in relation to this Part, to the extent that this Part was amended by the Telecommunications and Other Legislation Amendment Act 2017;

(h) a summary of any feedback or complaints made in relation to this Part, to the extent that this Part was amended by that Act;

(i) trends or issues in relation to the matters covered by paragraphs (a) to (h).

(2) The Home Affairs Secretary must give a report under subsection (1) to the Home Affairs Minister as soon as practicable after the end of the financial year concerned.

(3) The Home Affairs Minister must cause a copy of a report under subsection (1) to be laid before each House of the Parliament within 15 sitting days of that House after receiving the report.

Division 8A—Review by Parliamentary Joint Committee on Intelligence and Security

315K Review by Parliamentary Joint Committee on Intelligence and Security

(1) The Parliamentary Joint Committee on Intelligence and Security must review the operation of this Part, to the extent that this Part was amended by the Telecommunications and Other Legislation Amendment Act 2017.

(2) The review:

(a) must start on or before the second anniversary of the commencement of this section; and

(b) must be concluded on or before the third anniversary of the commencement of this section.

(3) The Committee must give the Home Affairs Minister a written report of the review.

Division 9—Generality of Part not limited

316 Generality of Part not limited

Nothing in this Part limits the generality of anything else in it.

Part 15—Industry assistance

Division 1—Introduction

317A Simplified outline of this Part

• The Director‑General of Security, the Director‑General of the Australian Secret Intelligence Service, the Director‑General of the Australian Signals Directorate or the chief officer of an interception agency may give a technical assistance request to a designated communications provider.

• A technical assistance request may ask the provider to do acts or things on a voluntary basis that are directed towards ensuring that the provider is capable of giving certain types of help to ASIO, the Australian Secret Intelligence Service, the Australian Signals Directorate or an interception agency in relation to:

(a) in the case of ASIO—safeguarding national security; or

(b) in the case of the Australian Secret Intelligence Service—the interests of Australia’s national security, the interests of Australia’s foreign relations or the interests of Australia’s national economic well‑being; or

(c) in the case of the Australian Signals Directorate—providing material, advice and other assistance on matters relating to the security and integrity of information that is processed, stored or communicated by electronic or similar means; or

(d) in the case of an interception agency—enforcing the criminal law, so far as it relates to serious Australian offences; or

(e) in the case of an interception agency—assisting the enforcement of the criminal laws in force in a foreign country, so far as those laws relate to serious foreign offences.

• A technical assistance request may ask the provider to give help to ASIO, the Australian Secret Intelligence Service, the Australian Signals Directorate or an interception agency on a voluntary basis in relation to:

(a) in the case of ASIO—safeguarding national security; or

(d) in the case of an interception agency—enforcing the criminal law, so far as it relates to serious Australian offences; or

(e) in the case of an interception agency—assisting the enforcement of the criminal laws in force in a foreign country, so far as those laws relate to serious foreign offences.

• The Director‑General of Security or the chief officer of an interception agency may give a designated communications provider a notice, to be known as a technical assistance notice, that requires the provider to do acts or things by way of giving certain types of help to ASIO or the agency in relation to:

(a) enforcing the criminal law, so far as it relates to serious Australian offences; or

(b) assisting the enforcement of the criminal laws in force in a foreign country, so far as those laws relate to serious foreign offences; or

• The Attorney‑General may give a designated communications provider a notice, to be known as a technical capability notice.

• A technical capability notice may require the provider to do acts or things directed towards ensuring that the provider is capable of giving certain types of help to ASIO or an interception agency in relation to:

(a) enforcing the criminal law, so far as it relates to serious Australian offences; or

(b) assisting the enforcement of the criminal laws in force in a foreign country, so far as those laws relate to serious foreign offences; or

• A technical capability notice may require the provider to do acts or things by way of giving certain types of help to ASIO or an interception agency in relation to:

(a) enforcing the criminal law, so far as it relates to serious Australian offences; or

(b) assisting the enforcement of the criminal laws in force in a foreign country, so far as those laws relate to serious foreign offences; or

317B Definitions

In this Part:

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

ASIO affiliate has the same meaning as in the Australian Security Intelligence Organisation Act 1979.

ASIO employee has the same meaning as in the Australian Security Intelligence Organisation Act 1979.

chief officer of an interception agency has the meaning given by section 317ZM.

contracted service provider, in relation to a designated communications provider, means a person who performs services for or on behalf of the provider, but does not include a person who performs such services in the capacity of an employee of the provider.

designated communications provider has the meaning given by section 317C.

electronic protection includes:

(a) authentication; and

(b) encryption.

electronic service has the meaning given by section 317D.

eligible activities of a designated communications provider has the meaning given by section 317C.

entrusted ASD person means a person who:

(a) is a staff member of the Australian Signals Directorate; or

(b) has entered into a contract, agreement or arrangement with the Australian Signals Directorate; or

(c) is an employee or agent of a person who has entered into a contract, agreement or arrangement with the Australian Signals Directorate.

entrusted ASIO person means an entrusted person (within the meaning of the Australian Security Intelligence Organisation Act 1979).

entrusted ASIS person means a person who:

(a) is a staff member or agent of the Australian Secret Intelligence Service; or

(b) has entered into a contract, agreement or arrangement with the Australian Secret Intelligence Service; or

(c) is an employee or agent of a person who has entered into a contract, agreement or arrangement with the Australian Secret Intelligence Service.

giving help:

(a) when used in relation to ASIO—includes giving help to an ASIO employee or an ASIO affiliate; or

(b) when used in relation to the Australian Secret Intelligence Service—includes giving help to a staff member of the Australian Secret Intelligence Service; or

(c) when used in relation to the Australian Signals Directorate—includes giving help to a staff member of the Australian Signals Directorate; or

(d) when used in relation to an interception agency—includes giving help to an officer of the agency.

Home Affairs Minister means the Minister administering the Telecommunications (Interception and Access) Act 1979.

interception agency means:

(a) the Australian Federal Police; or

(b) the Australian Crime Commission; or

(ba) the National Anti‑Corruption Commission; or

(d) the Independent Commission Against Corruption of New South Wales; or

(e) the New South Wales Crime Commission; or

(f) the Law Enforcement Conduct Commission of New South Wales; or

(g) the Independent Broad‑based Anti‑corruption Commission of Victoria; or

(h) the Crime and Corruption Commission of Queensland; or

(i) the Independent Commission Against Corruption of South Australia; or

(j) the Corruption and Crime Commission of Western Australia.

listed act or thing has the meaning given by section 317E.

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 any other form; or

(f) whether in any combination of forms.

member of the staff of the Independent Commission Against Corruption of South Australia means a person who is engaged under subsection 12(1) of the Independent Commission Against Corruption Act 2012 (SA).

officer of an interception agency has the meaning given by section 317ZM.

Ombudsman official means:

(a) the Commonwealth Ombudsman; or

(b) a Deputy Commonwealth Ombudsman; or

serious Australian offence means an offence against a law of the Commonwealth, a State or a Territory that is punishable by a maximum term of imprisonment of 3 years or more or for life.

serious foreign offence means an offence against a law in force in a foreign country that is punishable by a maximum term of imprisonment of 3 years or more or for life.

staff member, when used in relation to the Australian Secret Intelligence Service or the Australian Signals Directorate, has the same meaning as in the Intelligence Services Act 2001.

State or Territory inspecting authority, in relation to an interception agency of a State or Territory, means the authority that, under the law of the State or Territory concerned, has the function of making inspections of a similar kind to those provided for in section 55 of the Surveillance Devices Act 2004 when the interception agency is exercising powers under the law of that State or Territory that is of a similar nature to that Act.

supply:

(a) when used in relation to:

(i) a facility; or

(ii) customer equipment; or

(iii) a component;

includes supply (including re‑supply) by way of sale, exchange, lease, hire or hire‑purchase; and

(b) when used in relation to software—includes provide, grant or confer rights, privileges or benefits.

systemic vulnerability means a vulnerability that affects a whole class of technology, but does not include a vulnerability that is selectively introduced to one or more target technologies that are connected with a particular person. For this purpose, it is immaterial whether the person can be identified.

systemic weakness means a weakness that affects a whole class of technology, but does not include a weakness that is selectively introduced to one or more target technologies that are connected with a particular person. For this purpose, it is immaterial whether the person can be identified.

target technology:

(a) for the purposes of this Part, a particular carriage service, so far as the service is used, or is likely to be used, (whether directly or indirectly) by a particular person, is a target technology that is connected with that person; and

(b) for the purposes of this Part, a particular electronic service, so far as the service is used, or is likely to be used, (whether directly or indirectly) by a particular person, is a target technology that is connected with that person; and

(i) a particular computer; or

(ii) a particular item of equipment;

used, or likely to be used, (whether directly or indirectly) by a particular person is a target technology that is connected with that person; and

(d) for the purposes of this Part, a particular update of software that has been installed on:

(i) a particular computer; or

(ii) a particular item of equipment;

used, or likely to be used, (whether directly or indirectly) by a particular person is a target technology that is connected with that person; and

(e) for the purposes of this Part, a particular item of customer equipment used, or likely to be used, (whether directly or indirectly) by a particular person is a target technology that is connected with that person; and

(f) for the purposes of this Part, a particular data processing device used, or likely to be used, (whether directly or indirectly) by a particular person is a target technology that is connected with that person.

For the purposes of paragraphs (a), (b), (c), (d), (e) and (f), it is immaterial whether the person can be identified.

technical assistance notice means a notice given under section 317L.

technical assistance notice information means:

(a) information about any of the following:

(i) the giving of a technical assistance notice;

(ia) consultation relating to the giving of a technical assistance notice;

(ii) the existence or non‑existence of a technical assistance notice;

(iii) the variation of a technical assistance notice;

(iv) the revocation of a technical assistance notice;

(v) the requirements imposed by a technical assistance notice;

(vi) any act or thing done in compliance with a technical assistance notice; or

(b) any other information about a technical assistance notice.

technical assistance request means a request under paragraph 317G(1)(a).

technical assistance request information means:

(a) information about any of the following:

(i) the giving of a technical assistance request;

(ii) the existence or non‑existence of a technical assistance request;

(iii) the acts or things covered by a technical assistance request;

(iv) any act or thing done in accordance with a technical assistance request; or

(b) any other information about a technical assistance request.

technical capability notice means a notice given under section 317T.

technical capability notice information means:

(a) information about any of the following:

(i) the giving of a technical capability notice;

(ii) consultation relating to the giving of a technical capability notice;

(iii) the existence or non‑existence of a technical capability notice;

(iv) the variation of a technical capability notice;

(iva) consultation relating to the variation of a technical capability notice;

(v) the revocation of a technical capability notice;

(vi) the requirements imposed by a technical capability notice;

(vii) any act or thing done in compliance with a technical capability notice; or

(b) any other information about a technical capability notice.

317C Designated communications provider etc.

For the purposes of this Part, the following table defines:

(a) designated communications provider; and

(b) the eligible activities of a designated communications provider.

Designated communications provider and eligible activities
Item	A person is a designated communications provider if ...	... and the eligible activities of the person are ...
1	the person is a carrier or carriage service provider	(a) the operation by the person of telecommunications networks, or facilities, in Australia; or (b) the supply by the person of listed carriage services
2	the person is a carriage service intermediary who arranges for the supply by a carriage service provider of listed carriage services	(a) the arranging by the person for the supply by the carriage service provider of listed carriage services; or (b) the operation by the carriage service provider of telecommunications networks, or facilities, in Australia; or (c) the supply by the carriage service provider of listed carriage services
3	the person provides a service that facilitates, or is ancillary or incidental to, the supply of a listed carriage service	the provision by the person of a service that facilitates, or is ancillary or incidental to, the supply of a listed carriage service
4	the person provides an electronic service that has one or more end‑users in Australia	the provision by the person of an electronic service that has one or more end‑users in Australia
5	the person provides a service that facilitates, or is ancillary or incidental to, the provision of an electronic service that has one or more end‑users in Australia	the provision by the person of a service that facilitates, or is ancillary or incidental to, the provision of an electronic service that has one or more end‑users in Australia
6	the person develops, supplies or updates software used, for use, or likely to be used, in connection with: (a) a listed carriage service; or (b) an electronic service that has one or more end‑users in Australia	(a) the development by the person of any such software; or (b) the supply by the person of any such software; or (c) the updating by the person of any such software
7	the person manufactures, supplies, installs, maintains or operates a facility	(a) the manufacture by the person of a facility for use, or likely to be used, in Australia; or (b) the supply by the person of a facility for use, or likely to be used, in Australia; or (c) the installation by the person of a facility in Australia; or (d) the maintenance by the person of a facility in Australia; or (e) the operation by the person of a facility in Australia
8	the person manufactures or supplies components for use, or likely to be used, in the manufacture of a facility for use, or likely to be used, in Australia	(a) the manufacture by the person of any such components; or (b) the supply by the person of any such components
9	the person connects a facility to a telecommunications network in Australia	the connection by the person of a facility to a telecommunications network in Australia
10	the person manufactures or supplies customer equipment for use, or likely to be used, in Australia	(a) the manufacture by the person of any such customer equipment; or (b) the supply by the person of any such customer equipment
11	the person manufactures or supplies components for use, or likely to be used, in the manufacture of customer equipment for use, or likely to be used, in Australia	(a) the manufacture by the person of any such components; or (b) the supply by the person of any such components
12	the person: (a) installs or maintains customer equipment in Australia; and (b) does so otherwise than in the capacity of end‑user of the equipment	(a) any such installation by the person of customer equipment; or (b) any such maintenance by the person of customer equipment
13	the person: (a) connects customer equipment to a telecommunications network in Australia; and (b) does so otherwise than in the capacity of end‑user of the equipment	any such connection by the person of customer equipment to a telecommunications network in Australia
14	the person is a constitutional corporation who: (a) manufactures; or (b) supplies; or (c) installs; or (d) maintains; data processing devices	(a) the manufacture by the person of data processing devices for use, or likely to be used, in Australia; or (b) the supply by the person of data processing devices for use, or likely to be used, in Australia; or (c) the installation by the person of data processing devices in Australia; or (d) the maintenance by the person of data processing devices in Australia
15	the person is a constitutional corporation who: (a) develops; or (b) supplies; or (c) updates; software that is capable of being installed on a computer, or other equipment, that is, or is likely to be, connected to a telecommunications network in Australia	(a) the development by the person of any such software; or (b) the supply by the person of any such software; or (c) the updating by the person of any such software

Note 1: See also sections 317HAA, 317MAA and 317TAA (provision of advice to designated communications providers).

Note 2: See also section 317ZT (alternative constitutional basis).

317D Electronic service

(1) For the purposes of this Part, electronic service means:

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

but does not include:

(d) a datacasting service (within the meaning of the Broadcasting Services Act 1992).

(2) For the purposes of subsection (1), service includes a website.

(3) For the purposes of this Part, a person does not provide an electronic service merely because the person supplies a carriage service that enables material to be accessed or delivered.

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

(5) A reference in this section 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.

317E Listed acts or things

(1) For the purposes of the application of this Part to a designated communications provider, listed act or thing means:

(a) removing one or more forms of electronic protection that are or were applied by, or on behalf of, the provider; or

(b) providing technical information; or

(d) ensuring that information obtained in connection with the execution of a warrant or authorisation is given in a particular format; or

(da) an act or thing done to assist in, or facilitate:

(i) giving effect to a warrant or authorisation under a law of the Commonwealth, a State or a Territory; or

(ii) the effective receipt of information in connection with a warrant or authorisation under a law of the Commonwealth, a State or a Territory; or

(e) facilitating or assisting access to whichever of the following are the subject of eligible activities of the provider:

(i) a facility;

(ii) customer equipment;

(iii) a data processing device;

(iv) a listed carriage service;

(v) a service that facilitates, or is ancillary or incidental to, the supply of a listed carriage service;

(vi) an electronic service;

(vii) a service that facilitates, or is ancillary or incidental to, the provision of an electronic service;

(viii) software used, for use, or likely to be used, in connection with a listed carriage service;

(ix) software used, for use, or likely to be used, in connection with an electronic service;

(x) software that is capable of being installed on a computer, or other equipment, that is, or is likely to be, connected to a telecommunications network; or

(f) assisting with the testing, modification, development or maintenance of a technology or capability; or

(g) notifying particular kinds of changes to, or developments affecting, eligible activities of the designated communications provider, if the changes are relevant to the execution of a warrant or authorisation; or

(h) modifying, or facilitating the modification of, any of the characteristics of a service provided by the designated communications provider; or

(i) substituting, or facilitating the substitution of, a service provided by the designated communications provider for:

(i) another service provided by the provider; or

(ii) a service provided by another designated communications provider; or

(j) an act or thing done to conceal the fact that any thing has been done covertly in the performance of a function, or the exercise of a power, conferred by a law of the Commonwealth, a State or a Territory, so far as the function or power relates to:

(i) enforcing the criminal law, so far as it relates to serious Australian offences; or

(ii) assisting the enforcement of the criminal laws in force in a foreign country, so far as those laws relate to serious foreign offences; or

(iii) the interests of Australia’s national security, the interests of Australia’s foreign relations or the interests of Australia’s national economic well‑being.

(2) Paragraph (1)(j) does not apply to:

(a) making a false or misleading statement; or

(b) engaging in dishonest conduct.

317F Extension to external Territories

This Part extends to every external Territory.

Division 2—Voluntary technical assistance

317G Voluntary technical assistance provided to ASIO, the Australian Secret Intelligence Service, the Australian Signals Directorate or an interception agency

(1) If:

(a) any of the following persons:

(i) the Director‑General of Security;

(ii) the Director‑General of the Australian Secret Intelligence Service;

(iii) the Director‑General of the Australian Signals Directorate;

(iv) the chief officer of an interception agency;

requests a designated communications provider to do one or more specified acts or things that:

(v) are in connection with any or all of the eligible activities of the provider; and

(vi) are covered by subsection (2); and

(b) the provider does an act or thing:

(i) in accordance with the request; or

(ii) in good faith purportedly in accordance with the request;

then:

(c) the provider is not subject to any civil liability for, or in relation to, the act or thing mentioned in paragraph (b); and

(d) an officer, employee or agent of the provider is not subject to any civil liability for, or in relation to, an act or thing done by the officer, employee or agent in connection with the act or thing mentioned in paragraph (b).

(2) The specified acts or things must:

(a) be directed towards ensuring that the designated communications provider is capable of giving help to:

(i) in a case where the request is made by the Director‑General of Security—ASIO; or

(ii) in a case where the request is made by the Director‑General of the Australian Secret Intelligence Service—the Australian Secret Intelligence Service; or

(iii) in a case where the request is made by the Director‑General of the Australian Signals Directorate—the Australian Signals Directorate; or

(iv) in a case where the request is made by the chief officer of an interception agency—the agency;

in relation to:

(v) the performance of a function, or the exercise of a power, conferred by or under a law of the Commonwealth, a State or a Territory, so far as the function or power relates to a relevant objective; or

(vi) a matter that facilitates, or is ancillary or incidental to, a matter covered by subparagraph (v); or

(b) be by way of giving help to:

(i) in a case where the request is made by the Director‑General of Security—ASIO; or

(ii) in a case where the request is made by the Director‑General of the Australian Secret Intelligence Service—the Australian Secret Intelligence Service; or

(iii) in a case where the request is made by the Director‑General of the Australian Signals Directorate—the Australian Signals Directorate; or

(iv) in a case where the request is made by the chief officer of an interception agency—the agency;

in relation to:

(vi) a matter that facilitates, or is ancillary or incidental to, a matter covered by subparagraph (v).

(3) A request under paragraph (1)(a) is to be known as a technical assistance request.

(4) Subparagraph (1)(b)(ii) does not apply to an act or thing done by a designated communications provider unless the act or thing is in connection with any or all of the eligible activities of the provider.

Relevant objective

(5) For the purposes of this section, relevant objective means:

(a) in relation to a technical assistance request given by the Director‑General of Security—safeguarding national security; or

(b) in relation to a technical assistance request given by the Director‑General of the Australian Secret Intelligence Service—the interests of Australia’s national security, the interests of Australia’s foreign relations or the interests of Australia’s national economic well‑being; or

(c) in relation to a technical assistance request given by the Director‑General of the Australian Signals Directorate—providing material, advice and other assistance to a person or body mentioned in subsection 7(2) of the Intelligence Services Act 2001 on matters relating to the security and integrity of information that is processed, stored or communicated by electronic or similar means; or

(d) in relation to a technical assistance request given by the chief officer of an interception agency:

(i) enforcing the criminal law, so far as it relates to serious Australian offences; or

(ii) assisting the enforcement of the criminal laws in force in a foreign country, so far as those laws relate to serious foreign offences.

Listed acts or things

(6) The acts or things that may be specified in a technical assistance request given to a designated communications provider include (but are not limited to) listed acts or things, so long as those acts or things:

(a) are in connection with any or all of the eligible activities of the provider; and

(b) are covered by subsection (2).

Note: For listed acts or things, see section 317E.

317H Form of technical assistance request

(1) A technical assistance request may be given:

(a) orally; or

(b) in writing.

(2) A technical assistance request must not be given orally unless:

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

(b) the technical assistance request is necessary for the purpose of dealing with that risk; and

(3) If a technical assistance request is given orally by:

(a) the Director‑General of Security; or

(b) the Director‑General of the Australian Secret Intelligence Service; or

(d) the chief officer of an interception agency;

the Director‑General of Security, the Director‑General of the Australian Secret Intelligence Service, the Director‑General of the Australian Signals Directorate or the chief officer, as the case requires, must:

(e) make a written record of the request; and

(f) do so within 48 hours after the request was given.

(4) If, under subsection (3):

(a) the Director‑General of Security; or

(b) the Director‑General of the Australian Secret Intelligence Service; or

(d) the chief officer of an interception agency;

makes a written record of a technical assistance request, the Director‑General of Security, the Director‑General of the Australian Secret Intelligence Service, the Director‑General of the Australian Signals Directorate or the chief officer, as the case requires, must:

(e) give a copy of the record to the designated communications provider concerned; and

(f) do so as soon as practicable after the record was made.

(5) If, under subsection (3):

(a) the Director‑General of Security; or

(b) the Director‑General of the Australian Secret Intelligence Service; or

(d) the chief officer of an interception agency;

317HAA Provision of advice to designated communications providers

(1) If the Director‑General of Security gives a technical assistance request to a designated communications provider, the Director‑General of Security must advise the provider that compliance with the request is voluntary.

(2) If the Director‑General of the Australian Secret Intelligence Service gives a technical assistance request to a designated communications provider, the Director‑General of the Australian Secret Intelligence Service must advise the provider that compliance with the request is voluntary.

(3) If the Director‑General of the Australian Signals Directorate gives a technical assistance request to a designated communications provider, the Director‑General of the Australian Signals Directorate must advise the provider that compliance with the request is voluntary.

(4) If the chief officer of an interception agency gives a technical assistance request to a designated communications provider, the chief officer must advise the provider that compliance with the request is voluntary.

Form of advice

(5) Advice under subsection (1), (2), (3) or (4) may be given:

(a) orally; or

(b) in writing.

(6) If advice under subsection (1), (2), (3) or (4) is given orally by:

(a) the Director‑General of Security; or

(b) the Director‑General of the Australian Secret Intelligence Service; or

(d) the chief officer of an interception agency;

(e) make a written record of the advice; and

(f) do so within 48 hours after the advice was given.

317HAB Notification obligations

(1) If the Director‑General of Security gives a technical assistance request, the Director‑General of Security must, within 7 days after the request is given, notify the Inspector‑General of Intelligence and Security that the request has been given.

(2) If the Director‑General of the Australian Secret Intelligence Service gives a technical assistance request, the Director‑General of the Australian Secret Intelligence Service must, within 7 days after the request is given, notify the Inspector‑General of Intelligence and Security that the request has been given.

(3) If the Director‑General of the Australian Signals Directorate gives a technical assistance request, the Director‑General of the Australian Signals Directorate must, within 7 days after the request is given, notify the Inspector‑General of Intelligence and Security that the request has been given.

(4) If the chief officer of an interception agency gives a technical assistance request, the chief officer must, within 7 days after the request is given, notify the Commonwealth Ombudsman that the request has been given.

(5) A failure to comply with subsection (1), (2), (3) or (4) does not affect the validity of a technical assistance request.

317HA Duration of technical assistance request

(1) A technical assistance request:

(a) comes in force:

(i) when it is given; or

(ii) if a later time is specified in the request—at that later time; and

(b) unless sooner revoked, remains in force:

(i) if an expiry date is specified in the request—until the start of the expiry date; or

(ii) otherwise—at end of the 90‑day period beginning when the request was given.

(2) If a technical assistance request expires, this Part does not prevent the giving of a fresh technical assistance request in the same terms as the expired technical assistance request.

317J Specified period etc.

(1) A technical assistance request may include a request that a specified act or thing be done within a specified period.

(2) A technical assistance request may include a request that a specified act or thing be done:

(a) in a specified manner; or

(b) in a way that meets one or more specified conditions.

(3) Subsections (1) and (2) of this section do not limit subsections 317G(1) and (2).

317JAA Decision‑making criteria

(1) The Director‑General of Security must not give a technical assistance request to a designated communications provider unless the Director‑General of Security is satisfied that:

(a) the request is reasonable and proportionate; and

(b) compliance with the request is:

(i) practicable; and

(ii) technically feasible.

Note: See also section 317JC.

(2) The Director‑General of the Australian Secret Intelligence Service must not give a technical assistance request to a designated communications provider unless the Director‑General of the Australian Secret Intelligence Service is satisfied that:

(a) the request is reasonable and proportionate; and

(b) compliance with the request is:

(i) practicable; and

(ii) technically feasible.

Note: See also section 317JC.

(3) The Director‑General of the Australian Signals Directorate must not give a technical assistance request to a designated communications provider unless the Director‑General of the Australian Signals Directorate is satisfied that:

(a) the request is reasonable and proportionate; and

(b) compliance with the request is:

(i) practicable; and

(ii) technically feasible.

Note: See also section 317JC.

(4) The chief officer of an interception agency must not give a technical assistance request to a designated communications provider unless the chief officer is satisfied that:

(a) the request is reasonable and proportionate; and

(b) compliance with the request is:

(i) practicable; and

(ii) technically feasible.

Note: See also section 317JC.

317JA Variation of technical assistance requests

(1) If a technical assistance request has been given to a designated communications provider by the Director‑General of Security, the Director‑General of Security may vary the request.

(2) If a technical assistance request has been given to a designated communications provider by the Director‑General of the Australian Secret Intelligence Service, the Director‑General of the Australian Secret Intelligence Service may vary the request.

(3) If a technical assistance request has been given to a designated communications provider by the Director‑General of the Australian Signals Directorate, the Director‑General of the Australian Signals Directorate may vary the request.

(4) If a technical assistance request has been given to a designated communications provider by the chief officer of an interception agency, the chief officer may vary the request.

Form of variation

(5) A variation may be made:

(a) orally; or

(b) in writing.

(6) A variation must not be made orally unless:

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

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

(7) If a variation is made orally by:

(a) the Director‑General of Security; or

(b) the Director‑General of the Australian Secret Intelligence Service; or

(d) the chief officer of an interception agency;

(e) make a written record of the variation; and

(f) do so within 48 hours after the variation was made.

(8) If, under subsection (7):

(a) the Director‑General of Security; or

(b) the Director‑General of the Australian Secret Intelligence Service; or

(d) the chief officer of an interception agency;

makes a written record of a variation, the Director‑General of Security, the Director‑General of the Australian Secret Intelligence Service, the Director‑General of the Australian Signals Directorate or the chief officer, as the case requires, must:

(e) give a copy of the record to the designated communications provider concerned; and

(f) do so as soon as practicable after the record was made.

Acts or things specified in a varied technical assistance request

(9) The acts or things specified in a varied technical assistance request must be:

(a) in connection with any or all of the eligible activities of the designated communications provider concerned; and

(b) covered by subsection 317G(2).

(10) The acts or things that may be specified in a varied technical assistance request include (but are not limited to) listed acts or things, so long as those acts or things:

(a) are in connection with any or all of the eligible activities of the designated communications provider concerned; and

(b) are covered by subsection 317G(2).

Note: For listed acts or things, see section 317E.

Decision‑making criteria

(11) The Director‑General of Security must not vary a technical assistance request unless the Director‑General of Security is satisfied that:

(a) the varied request is reasonable and proportionate; and

(b) compliance with the varied request is:

(i) practicable; and

(ii) technically feasible.

Note: See also section 317JC.

(12) The Director‑General of the Australian Secret Intelligence Service must not vary a technical assistance request unless the Director‑General of the Australian Secret Intelligence Service is satisfied that:

(a) the varied request is reasonable and proportionate; and

(b) compliance with the varied request is:

(i) practicable; and

(ii) technically feasible.

Note: See also section 317JC.

(13) The Director‑General of the Australian Signals Directorate must not vary a technical assistance request unless the Director‑General of the Australian Signals Directorate is satisfied that:

(a) the varied request is reasonable and proportionate; and

(b) compliance with the varied request is:

(i) practicable; and

(ii) technically feasible.

Note: See also section 317JC.

(14) The chief officer of an interception agency must not vary a technical assistance request unless the chief officer is satisfied that:

(a) the varied request is reasonable and proportionate; and

(b) compliance with the varied request is:

(i) practicable; and

(ii) technically feasible.

Note: See also section 317JC.

Notification obligations

(15) If the Director‑General of Security varies a technical assistance request, the Director‑General of Security must, within 7 days after varying the request, notify the Inspector‑General of Intelligence and Security that the request has been varied.

(16) If the Director‑General of the Australian Secret Intelligence Service varies a technical assistance request, the Director‑General of the Australian Secret Intelligence Service must, within 7 days after varying the request, notify the Inspector‑General of Intelligence and Security that the request has been varied.

(17) If the Director‑General of the Australian Signals Directorate varies a technical assistance request, the Director‑General of the Australian Signals Directorate must, within 7 days after varying the request, notify the Inspector‑General of Intelligence and Security that the request has been varied.

(18) If the chief officer of an interception agency varies a technical assistance request, the chief officer must, within 7 days after varying the request, notify the Commonwealth Ombudsman that the request has been varied.

(19) A failure to comply with subsection (15), (16), (17) or (18) does not affect the validity of a variation of a technical assistance request.

317JB Revocation of technical assistance requests

(1) If a technical assistance request has been given to a person by the Director‑General of Security, the Director‑General of Security may, by written notice given to the person, revoke the request.

(1A) If a technical assistance request has been given to a person by the Director‑General of Security, and the Director‑General of Security is satisfied that:

(a) the request is not reasonable and proportionate; or

(b) compliance with the request is not:

(i) practicable; and

(ii) technically feasible;

the Director‑General of Security must, by written notice given to the person, revoke the request.

(2) If a technical assistance request has been given to a person by the Director‑General of the Australian Secret Intelligence Service, the Director‑General of the Australian Secret Intelligence Service may, by written notice given to the person, revoke the request.

(2A) If a technical assistance request has been given to a person by the Director‑General of the Australian Secret Intelligence Service, and the Director‑General of the Australian Secret Intelligence Service is satisfied that:

(a) the request is not reasonable and proportionate; or

(b) compliance with the request is not:

(i) practicable; and

(ii) technically feasible;

the Director‑General of the Australian Secret Intelligence Service must, by written notice given to the person, revoke the request.

(3) If a technical assistance request has been given to a person by the Director‑General of the Australian Signals Directorate, the Director‑General of the Australian Signals Directorate may, by written notice given to the person, revoke the request.

(3A) If a technical assistance request has been given to a person by the Director‑General of the Australian Signals Directorate, and the Director‑General of the Australian Signals Directorate is satisfied that:

(a) the request is not reasonable and proportionate; or

(b) compliance with the request is not:

(i) practicable; and

(ii) technically feasible;

the Director‑General of the Australian Signals Directorate must, by written notice given to the person, revoke the request.

(4) If a technical assistance request has been given to a person by the chief officer of an interception agency, the chief officer may, by written notice given to the person, revoke the request.

(5) If a technical assistance request has been given to a person by the chief officer of an interception agency, and the chief officer is satisfied that:

(a) the request is not reasonable and proportionate; or

(b) compliance with the request is not:

(i) practicable; and

(ii) technically feasible;

the chief officer must, by written notice given to the person, revoke the request.

Notification obligations

(6) If the Director‑General of Security revokes a technical assistance request, the Director‑General of Security must, within 7 days after revoking the request, notify the Inspector‑General of Intelligence and Security that the request has been revoked.

(7) If the Director‑General of the Australian Secret Intelligence Service revokes a technical assistance request, the Director‑General of the Australian Secret Intelligence Service must, within 7 days after revoking the request, notify the Inspector‑General of Intelligence and Security that the request has been revoked.

(8) If the Director‑General of the Australian Signals Directorate revokes a technical assistance request, the Director‑General of the Australian Signals Directorate must, within 7 days after revoking the request, notify the Inspector‑General of Intelligence and Security that the request has been revoked.

(9) If the chief officer of an interception agency revokes a technical assistance request, the chief officer must, within 7 days after revoking the request, notify the Commonwealth Ombudsman that the request has been revoked.

(10) A failure to comply with subsection (6), (7), (8) or (9) does not affect the validity of a revocation of a technical assistance request.

317JC Whether a technical assistance request is reasonable and proportionate

In considering whether a technical assistance request or a varied technical assistance request is reasonable and proportionate, the Director‑General of Security, the Director‑General of the Australian Secret Intelligence Service, the Director‑General of the Australian Signals Directorate or the chief officer of an interception agency, as the case requires, must have regard to the following matters:

(a) the interests of national security;

(b) the interests of law enforcement;

(d) the objectives of the request;

(e) the availability of other means to achieve the objectives of the request;

(f) whether the request, when compared to other forms of industry assistance known to the Director‑General of Security, the Director‑General of the Australian Secret Intelligence Service, the Director‑General of the Australian Signals Directorate or the chief officer, as the case requires, is the least intrusive form of industry assistance so far as the following persons are concerned:

(i) persons whose activities are not of interest to ASIO;

(ii) persons whose activities are not of interest to the Australian Secret Intelligence Service;

(iii) persons whose activities are not of interest to the Australian Signals Directorate;

(iv) persons whose activities are not of interest to interception agencies;

(g) whether the request is necessary;

(h) the legitimate expectations of the Australian community relating to privacy and cybersecurity;

(i) such other matters (if any) as the Director‑General of Security, the Director‑General of the Australian Secret Intelligence Service, the Director‑General of the Australian Signals Directorate or the chief officer, as the case requires, considers relevant.

317K Contract etc.

Any of the following persons:

(a) the Director‑General of Security;

(b) the Director‑General of the Australian Secret Intelligence Service;

(d) the chief officer of an interception agency;

may enter into a contract, agreement or arrangement with a designated communications provider in relation to acts or things done by the provider in accordance with a technical assistance request.

Division 3—Technical assistance notices

317L Technical assistance notices

(1) The Director‑General of Security or the chief officer of an interception agency may give a designated communications provider a notice, to be known as a technical assistance notice, that requires the provider to do one or more specified acts or things that:

(a) are in connection with any or all of the eligible activities of the provider; and

(b) are covered by subsection (2).

Note: Section 317ZK deals with the terms and conditions on which such a requirement is to be complied with.

(2) The specified acts or things must be by way of giving help to:

(a) in a case where the technical assistance notice is given by the Director‑General of Security—ASIO; or

(b) in a case where the technical assistance notice is given by the chief officer of an interception agency—the agency;

in relation to:

(c) the performance of a function, or the exercise of a power, conferred by or under a law of the Commonwealth, a State or a Territory, so far as the function or power relates to:

(i) enforcing the criminal law, so far as it relates to serious Australian offences; or

(ii) assisting the enforcement of the criminal laws in force in a foreign country, so far as those laws relate to serious foreign offences; or

(iii) safeguarding national security; or

(d) a matter that facilitates, or is ancillary or incidental to, a matter covered by paragraph (c).

(2A) The specified acts or things must not be directed towards ensuring that a designated communications provider is capable of giving help to ASIO or an interception agency.

Listed acts or things

(3) The acts or things specified in a technical assistance notice given to a designated communications provider must be listed acts or things, so long as those acts or things:

(a) are in connection with any or all of the eligible activities of the provider; and

(b) are covered by subsection (2).

Note: For listed acts or things, see section 317E.

317LA Approval of technical assistance notices given by the chief officer of an interception agency of a State or Territory

(1) The chief officer of an interception agency of a State or Territory must not give a technical assistance notice to a designated communications provider unless:

(a) the chief officer has given the AFP Commissioner a written notice setting out a proposal to give the technical assistance notice; and

(b) the AFP Commissioner has approved the giving of the technical assistance notice.

(2) An approval under paragraph (1)(b) may be given:

(a) orally; or

(b) in writing.

(3) If an approval under paragraph (1)(b) is given orally, the AFP Commissioner must:

(a) make a written record of the approval; and

(b) do so within 48 hours after the approval was given.

(4) For the purposes of this section, AFP Commissioner means the Commissioner (within the meaning of the Australian Federal Police Act 1979).

317M Form of technical assistance notice

(1) A technical assistance notice may be given:

(a) orally; or

(b) in writing.

(2) A technical assistance notice must not be given orally unless:

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

(b) the technical assistance notice is necessary for the purpose of dealing with that risk; and

(3) If a technical assistance notice is given orally by the Director‑General of Security or the chief officer of an interception agency, the Director‑General of Security or the chief officer, as the case requires, must:

(a) make a written record of the notice; and

(b) do so within 48 hours after the notice was given.

(4) If, under subsection (3), the Director‑General of Security or the chief officer of an interception agency makes a written record of a technical assistance notice, the Director‑General of Security or the chief officer, as the case requires, must:

(a) give a copy of the record to the designated communications provider concerned; and

(b) do so as soon as practicable after the record was made.

(5) If, under subsection (3), the Director‑General of Security or the chief officer of an interception agency makes a written record of a technical assistance notice, the Director‑General of Security or the chief officer, as the case requires, must retain the record while the notice is in force.

317MAA Provision of advice to designated communications providers

(1) If the Director‑General of Security gives a technical assistance notice to a designated communications provider, the Director‑General of Security must give the provider advice relating to the provider’s obligations under whichever of sections 317ZA and 317ZB is applicable, so far as those obligations relate to the notice.

(2) If the chief officer of an interception agency gives a technical assistance notice to a designated communications provider, the chief officer must give the provider advice relating to the provider’s obligations under whichever of sections 317ZA and 317ZB is applicable, so far as those obligations relate to the notice.

(3) If the Director‑General of Security gives a technical assistance notice to a designated communications provider, the Director‑General of Security must notify the provider of the provider’s right to make a complaint about the notice to the Inspector‑General of Intelligence and Security under the Inspector‑General of Intelligence and Security Act 1986.

(4) If:

(a) the chief officer of an interception agency gives a technical assistance notice to a designated communications provider; and

(b) the provider has a right to make a complaint about the conduct of the chief officer, or the interception agency, in relation to the notice to:

(i) the Commonwealth Ombudsman; or

(ii) an authority that is the State or Territory inspecting agency in relation to the interception agency;

the chief officer must notify the provider of the provider’s right to make such a complaint.

Form of advice or notification

(5) Advice under subsection (1) or (2), or notification under subsection (3) or (4), may be given:

(a) orally; or

(b) in writing.

(6) If advice under subsection (1) or (2), or notification under subsection (3) or (4), is given orally by the Director‑General of Security or the chief officer of an interception agency, the Director‑General of Security or the chief officer, as the case requires, must:

(a) make a written record of the advice or notification; and

(b) do so within 48 hours after the advice or notification was given.

317MAB Notification obligations

(1) If the Director‑General of Security gives a technical assistance notice, the Director‑General of Security must, within 7 days after the notice is given, notify the Inspector‑General of Intelligence and Security that the notice has been given.

(2) If the chief officer of an interception agency gives a technical assistance notice, the chief officer must, within 7 days after the notice is given, notify the Commonwealth Ombudsman that the notice has been given.

(3) A failure to comply with subsection (1) or (2) does not affect the validity of a technical assistance notice.

317MA Duration of technical assistance notice

(1) A technical assistance notice:

(a) comes in force:

(i) when it is given; or

(ii) if a later time is specified in the notice—at that later time; and

(b) unless sooner revoked, remains in force:

(i) if an expiry date is specified in the notice—until the start of the expiry date; or

(ii) otherwise—at end of the 90‑day period beginning when the notice was given.

(1A) An expiry date specified in a technical assistance notice must not be later than 12 months after the notice was given.

(1B) Paragraph (1)(b) has effect subject to subsections (1C) and (1D).

(1C) If the Director‑General of Security has given a technical assistance notice to a designated communications provider, the Director‑General of Security may, with the agreement of the provider, extend for a further period (not exceeding 12 months) or further periods (not exceeding 12 months in each case) the period for which the technical assistance notice is in force.

(1D) If the chief officer of an interception agency has given a technical assistance notice to a designated communications provider, the chief officer may, with the agreement of the provider, extend for a further period (not exceeding 12 months) or further periods (not exceeding 12 months in each case) the period for which the technical assistance notice is in force.

(1E) If the Director‑General of Security extends the period for which a technical assistance notice is in force, the Director‑General of Security must, within 7 days after extending the period, notify the Inspector‑General of Intelligence and Security of the extension.

(1F) If the chief officer of an interception agency extends the period for which a technical assistance notice is in force, the chief officer must, within 7 days after extending the period, notify the Commonwealth Ombudsman of the extension.

(1G) A failure to comply with subsection (1E) or (1F) does not affect the validity of an extension of a technical assistance notice.

(2) If a technical assistance notice expires, this Part does not prevent the giving of a fresh technical assistance notice in the same terms as the expired technical assistance notice.

317N Compliance period etc.

(1) A technical assistance notice may require a specified act or thing to be done within a specified period.

(2) A technical assistance notice may require a specified act or thing to be done:

(a) in a specified manner; or

(b) in a way that meets one or more specified conditions.

(3) Subsections (1) and (2) of this section do not limit subsections 317L(1) and (2).

317P Decision‑making criteria

The Director‑General of Security or the chief officer of an interception agency must not give a technical assistance notice to a designated communications provider unless the Director‑General of Security or the chief officer, as the case requires, is satisfied that:

(a) the requirements imposed by the notice are reasonable and proportionate; and

(b) compliance with the notice is:

(i) practicable; and

(ii) technically feasible.

Note: See also section 317RA.

317PA Consultation about a proposal to give a technical assistance notice

(1) Before giving a technical assistance notice to a designated communications provider, the Director‑General of Security or the chief officer of an interception agency, as the case requires, must consult the provider.

(2) The rule in subsection (1) does not apply to a technical assistance notice given to a designated communications provider by the Director‑General of Security if:

(a) the Director‑General of Security is satisfied that the technical assistance notice should be given as a matter of urgency; or

(b) the provider waives compliance with subsection (1).

(3) The rule in subsection (1) does not apply to a technical assistance notice given to a designated communications provider by the chief officer of an interception agency if:

(a) the chief officer is satisfied that the technical assistance notice should be given as a matter of urgency; or

(b) the provider waives compliance with subsection (1).

317Q Variation of technical assistance notices

(1) If a technical assistance notice has been given to a designated communications provider by the Director‑General of Security, the Director‑General of Security may vary the notice.

(2) If a technical assistance notice has been given to a designated communications provider by the chief officer of an interception agency, the chief officer may vary the notice.

Form of variation

(3) A variation may be made:

(a) orally; or

(b) in writing.

(4) A variation must not be made orally unless:

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

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

(5) If a variation is made orally by the Director‑General of Security or the chief officer of an interception agency, the Director‑General of Security or the chief officer, as the case requires, must:

(a) make a written record of the variation; and

(b) do so within 48 hours after the variation was made.

(6) If, under subsection (5), the Director‑General of Security or the chief officer of an interception agency makes a written record of a variation, the Director‑General of Security or the chief officer, as the case requires, must:

(a) give a copy of the record to the designated communications provider concerned; and

(b) do so as soon as practicable after the record was made.

(7) If a variation is made in writing by the Director‑General of Security or the chief officer of an interception agency, the Director‑General of Security or the chief officer, as the case requires, must:

(a) give a copy of the variation to the designated communications provider concerned; and

(b) do so as soon as practicable after the variation was made.

Acts or things specified in a varied technical assistance notice

(8) The acts or things specified in a varied technical assistance notice must be:

(a) in connection with any or all of the eligible activities of the designated communications provider concerned; and

(b) covered by subsection 317L(2).

(9) The acts or things specified in a varied technical assistance notice must be listed acts or things, so long as those acts or things:

(a) are in connection with any or all of the eligible activities of the designated communications provider concerned; and

(b) are covered by subsection 317L(2).

Note: For listed acts or things, see section 317E.

Decision‑making criteria

(10) The Director‑General of Security or the chief officer of an interception agency must not vary a technical assistance notice unless the Director‑General of Security or the chief officer, as the case requires, is satisfied that:

(a) the requirements imposed by the varied notice are reasonable and proportionate; and

(b) compliance with the varied notice is:

(i) practicable; and

(ii) technically feasible.

Note: See also section 317RA.

Variation must not extend duration of technical assistance notice

(11) A variation of a technical assistance notice must not extend the period for which the notice is in force.

Notification obligations

(12) If the Director‑General of Security varies a technical assistance notice, the Director‑General of Security must, within 7 days after varying the notice, notify the Inspector‑General of Intelligence and Security that the notice has been varied.

(13) If the chief officer of an interception agency varies a technical assistance notice, the chief officer must, within 7 days after varying the notice, notify the Commonwealth Ombudsman that the notice has been varied.

(14) A failure to comply with subsection (12) or (13) does not affect the validity of a variation of a technical assistance notice.

317R Revocation of technical assistance notices

(1) If a technical assistance notice has been given to a person by the Director‑General of Security, the Director‑General of Security may, by written notice given to the person, revoke the notice.

(2) If a technical assistance notice has been given to a person by the Director‑General of Security, and the Director‑General of Security is satisfied that:

(a) the requirements imposed by the notice are not reasonable and proportionate; or

(b) compliance with the notice is not:

(i) practicable; and

(ii) technically feasible;

the Director‑General of Security must, by written notice given to the person, revoke the notice.

(3) If a technical assistance notice has been given to a person by the chief officer of an interception agency, the chief officer may, by written notice given to the person, revoke the notice.

(4) If a technical assistance notice has been given to a person by the chief officer of an interception agency, and the chief officer is satisfied that:

(a) the requirements imposed by the notice are not reasonable and proportionate; or

(b) compliance with the notice is not:

(i) practicable; and

(ii) technically feasible;

the chief officer must, by written notice given to the person, revoke the notice.

Notification obligations

(5) If the Director‑General of Security revokes a technical assistance notice, the Director‑General of Security must, within 7 days after revoking the notice, notify the Inspector‑General of Intelligence and Security that the notice has been revoked.

(6) If the chief officer of an interception agency revokes a technical assistance notice, the chief officer must, within 7 days after revoking the notice, notify the Commonwealth Ombudsman that the notice has been revoked.

(7) A failure to comply with subsection (5) or (6) does not affect the validity of a revocation of a technical assistance notice.

317RA Whether requirements imposed by a technical assistance notice are reasonable and proportionate

In considering whether the requirements imposed by a technical assistance notice or a varied technical assistance notice are reasonable and proportionate, the Director‑General of Security or the chief officer of an interception agency, as the case requires, must have regard to the following matters:

(a) the interests of national security;

(b) the interests of law enforcement;

(d) the objectives of the notice;

(e) the availability of other means to achieve the objectives of the notice;

(ea) whether the requirements, when compared to other forms of industry assistance known to the Director‑General of Security or the chief officer, as the case requires, are the least intrusive form of industry assistance so far as the following persons are concerned:

(i) persons whose activities are not of interest to ASIO;

(ii) persons whose activities are not of interest to interception agencies;

(eb) whether the requirements are necessary;

(f) the legitimate expectations of the Australian community relating to privacy and cybersecurity;

(g) such other matters (if any) as the Director‑General of Security or the chief officer, as the case requires, considers relevant.

Division 4—Technical capability notices

317S Attorney‑General may determine procedures and arrangements relating to requests for technical capability notices

(1) The Attorney‑General may, by writing, determine procedures and arrangements to be followed in relation to the making of requests for technical capability notices.

(2) A procedure or arrangement determined under subsection (1) may require that the agreement of a person or body must be obtained before a request is made for a technical capability notice.

(3) A failure to comply with a determination under subsection (1) does not affect the validity of a technical capability notice.

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

317T Technical capability notices

(1) The Attorney‑General may, in accordance with a request made by the Director‑General of Security or the chief officer of an interception agency, give a designated communications provider a written notice, to be known as a technical capability notice, that requires the provider to do one or more specified acts or things that:

(a) are in connection with any or all of the eligible activities of the provider; and

(b) are covered by subsection (2).

Note: Section 317ZK deals with the terms and conditions on which such a requirement is to be complied with.

(2) The specified acts or things must:

(a) be directed towards ensuring that the designated communications provider is capable of giving listed help to ASIO, or an interception agency, in relation to:

(i) the performance of a function, or the exercise of a power, conferred by or under a law of the Commonwealth, a State or a Territory, so far as the function or power relates to a relevant objective; or

(ii) a matter that facilitates, or is ancillary or incidental to, a matter covered by subparagraph (i); or

(b) be by way of giving help to ASIO, or an interception agency, in relation to:

(ii) a matter that facilitates, or is ancillary or incidental to, a matter covered by subparagraph (i).

Relevant objective

(3) For the purposes of this section, relevant objective means:

(a) enforcing the criminal law, so far as it relates to serious Australian offences; or

(b) assisting the enforcement of the criminal laws in force in a foreign country, so far as those laws relate to serious foreign offences; or

Listed help

(4) For the purposes of the application of this section to a designated communications provider, if one or more acts or things done by the provider:

(a) are by way of giving help to ASIO or an interception agency; and

(b) are in connection with any or all of the eligible activities of the provider; and

(i) one or more listed acts or things (other than an act or thing covered by paragraph 317E(1)(a));

(ii) one or more acts or things of a kind determined under subsection (5);

that help is listed help.

Note: For listed acts or things, see section 317E.

(5) The Home Affairs Minister may, by legislative instrument, determine one or more kinds of acts or things for the purposes of subparagraph (4)(c)(ii).

(6) In making a determination under subsection (5), the Home Affairs Minister must have regard to the following matters:

(a) the interests of law enforcement;

(b) the interests of national security;

(d) the likely impact of the determination on designated communications providers;

(e) such other matters (if any) as the Home Affairs Minister considers relevant.

Listed acts or things

(7) The acts or things specified in a technical capability notice given to a designated communications provider in accordance with paragraph (2)(b) must be listed acts or things, so long as those acts or things:

(a) are in connection with any or all of the eligible activities of the provider; and

(b) are covered by subsection (2), so far as that subsection relates to paragraph (2)(b).

Applicable costs negotiator

(12) A technical capability notice must specify a person as the applicable costs negotiator for the notice.

Note: See section 317ZK.

(13) A person may be specified under subsection (12):

(a) by name; or

(b) as any person from time to time holding, occupying, or performing the duties of, a specified office or position.

317TAAA Approval of technical capability notice

(1) The Attorney‑General must not give a technical capability notice to a designated communications provider unless:

(a) the Attorney‑General has given the Minister a written notice setting out a proposal to give the technical capability notice; and

(b) the Minister has approved the giving of the technical capability notice.

(2) An approval under paragraph (1)(b) may be given:

(a) orally; or

(b) in writing.

(3) If an approval under paragraph (1)(b) is given orally, the Minister must:

(a) make a written record of the approval; and

(b) do so within 48 hours after the approval was given.

(4) The Attorney‑General may make a representation to the Minister about the proposal to give the technical capability notice.

(5) A representation may deal with:

(a) any of the matters set out in section 317ZAA; and

(b) such other matters (if any) as the Attorney‑General considers relevant.

(6) In considering whether to approve the giving of the technical capability notice, the Minister must have regard to the following matters:

(a) the objectives of the notice;

(b) the legitimate interests of the designated communications provider to whom the notice relates;

(c) the impact of the notice on the efficiency and international competitiveness of the Australian telecommunications industry;

(d) the representation (if any) that was made under subsection (4);

(e) such other matters (if any) as the Minister considers relevant.

317TAA Provision of advice to designated communications providers

(1) If the Attorney‑General gives a technical capability notice to a designated communications provider, the Attorney‑General must give the provider advice relating to the provider’s obligations under whichever of sections 317ZA and 317ZB is applicable, so far as those obligations relate to the notice.

Form of advice

(2) Advice under subsection (1) may be given:

(a) orally; or

(b) in writing.

(3) If advice under subsection (1) is given orally, the Attorney‑General must:

(a) make a written record of the advice; and

(b) do so within 48 hours after the advice was given.

317TAB Notification obligations

(1) If:

(a) the Attorney‑General gives a technical capability notice; and

(b) the acts or things specified in the notice:

(i) are directed towards ensuring that a designated communications provider is capable of giving listed help (within the meaning of section 317T) to ASIO in relation to a matter covered by paragraph 317T(2)(a); or

(ii) are by way of giving help to ASIO in relation to a matter covered by paragraph 317T(2)(b);

the Attorney‑General must, within 7 days after the notice is given, notify the Inspector‑General of Intelligence and Security that the notice has been given.

(2) If:

(a) the Attorney‑General gives a technical capability notice; and

(b) the acts or things specified in the notice:

(i) are directed towards ensuring that a designated communications provider is capable of giving listed help (within the meaning of section 317T) to an interception agency in relation to a matter covered by paragraph 317T(2)(a); or

(ii) are by way of giving help to an interception agency in relation to a matter covered by paragraph 317T(2)(b);

the Attorney‑General must, within 7 days after the notice is given, notify the Commonwealth Ombudsman that the notice has been given.

(3) A failure to comply with subsection (1) or (2) does not affect the validity of a technical capability notice.

317TA Duration of technical capability notice

(1) A technical capability notice:

(a) comes in force:

(i) when it is given; or

(ii) if a later time is specified in the notice—at that later time; and

(b) unless sooner revoked, remains in force:

(i) if an expiry date is specified in the notice—until the start of the expiry date; or

(ii) otherwise—at end of the 180‑day period beginning when the notice was given.

(1A) An expiry date specified in a technical capability notice must not be later than 12 months after the notice was given.

(1B) Paragraph (1)(b) has effect subject to subsection (1C).

(1C) If the Attorney‑General has given a technical capability notice to a designated communications provider, the Attorney‑General may, with the agreement of the provider, extend for a further period (not exceeding 12 months) or further periods (not exceeding 12 months in each case) the period for which the technical capability notice is in force.

(1D) If:

(a) the Attorney‑General extends the period for which a technical capability notice is in force; and

(b) the acts or things specified in the notice:

(ii) are by way of giving help to ASIO in relation to a matter covered by paragraph 317T(2)(b);

the Attorney‑General must, within 7 days after extending the period, notify the Inspector‑General of Intelligence and Security of the extension.

(1E) If:

(a) the Attorney‑General extends the period for which a technical capability notice is in force; and

(b) the acts or things specified in the notice:

(ii) are by way of giving help to an interception agency in relation to a matter covered by paragraph 317T(2)(b);

the Attorney‑General must, within 7 days after extending the period, notify the Commonwealth Ombudsman of the extension.

(1F) A failure to comply with subsection (1D) or (1E) does not affect the validity of an extension of a technical capability notice.

(2) If a technical capability notice expires, this Part does not prevent the giving of a fresh technical capability notice in the same terms as the expired technical capability notice.

317U Compliance period etc.

(1) A technical capability notice may require a specified act or thing to be done within a specified period.

(2) A technical capability notice may require a specified act or thing to be done:

(a) in a specified manner; or

(b) in a way that meets one or more specified conditions.

(3) Subsections (1) and (2) of this section do not limit subsections 317T(1) and (2).

317V Decision‑making criteria

The Attorney‑General must not give a technical capability notice to a designated communications provider unless:

(a) the Attorney‑General is satisfied that the requirements imposed by the notice are reasonable and proportionate; and

(b) the Attorney‑General is satisfied that compliance with the notice is:

(i) practicable; and

(ii) technically feasible.

Note: See also section 317ZAA.

317W Consultation about a proposal to give a technical capability notice

(1) The Attorney‑General must not give a technical capability notice to a designated communications provider unless the Attorney‑General has first:

(a) given the provider a written notice (the consultation notice):

(i) setting out a proposal to give the technical capability notice; and

(ii) inviting the provider to make a submission to the Attorney‑General on the proposed technical capability notice; and

(b) considered any submission that was received within the time limit specified in the consultation notice.

(2) A time limit specified in a consultation notice must run for at least 28 days.

(3) The rule in subsection (2) does not apply to a technical capability notice given to a designated communications provider if:

(a) the Attorney‑General is satisfied that the technical capability notice should be given as a matter of urgency; or

(b) compliance with subsection (2) is impracticable; or

(4) For the purposes of paragraph (3)(c), a designated communications provider may waive compliance:

(a) orally; or

(b) in writing.

(5) If compliance is waived orally by a designated communications provider, the provider must:

(a) make a written record of the waiver; and

(b) do so within 48 hours after the waiver was made.

(6) If, under subsection (5), a designated communications provider makes a written record of the waiver, the provider must:

(a) give a copy of the record to the Attorney‑General; and

(b) do so as soon as practicable after the record was made.

(7) Subsection (1) does not apply to a technical capability notice proposed to be given to a designated communications provider if:

(a) the requirements imposed by the proposed technical capability notice are the same, or substantially the same, as the requirements imposed by another technical capability notice that has previously been given to the provider; and

(b) the proposed technical capability notice is to come into force immediately after the expiry of the other technical capability notice.

Special consultation requirements for replacement technical capability notices

(8) Before giving a designated communications provider a technical capability notice that satisfies the following conditions:

(a) the requirements imposed by the technical capability notice are the same, or substantially the same, as the requirements imposed by another technical capability notice that has previously been given to the provider;

(b) the first‑mentioned technical capability notice is to come into force immediately after the expiry of the other technical capability notice;

the Attorney‑General must consult the provider.

(9) The rule in subsection (8) does not apply to a technical capability notice given to a designated communications provider if the provider waives compliance with subsection (8).

317WA Assessment and report

Designated communications provider may request carrying out of assessment

(1) If a consultation notice is given to a designated communications provider under subsection 317W(1) in relation to a proposed technical capability notice, the provider may, within the time limit specified in the consultation notice, give the Attorney‑General a written notice requesting the carrying out of an assessment of whether the proposed technical capability notice should be given.

Attorney‑General must appoint assessors

(2) If a designated communications provider gives the Attorney‑General a notice under subsection (1) in relation to a proposed technical capability notice, the Attorney‑General must appoint 2 persons to carry out an assessment of whether the proposed technical capability notice should be given.

(3) For the purposes of this section, the persons appointed under subsection (2) are to be known as the assessors.

(4) One of the assessors must be a person who:

(a) has knowledge that would enable the person to assess whether proposed technical capability notices would contravene section 317ZG; and

(b) is cleared for security purposes to:

(i) the highest level required by staff members of ASIO; or

(ii) such lower level as the Attorney‑General approves.

(5) One of the assessors must be a person who:

(a) has served as a judge in one or more prescribed courts for a period of 5 years; and

(b) no longer holds a commission as a judge of a prescribed court.

Assessment and report by assessors

(6) As soon as practicable after being appointed under subsection (2), the assessors must:

(a) carry out an assessment of whether the proposed technical capability notice should be given; and

(b) prepare a report of the assessment; and

(i) the Attorney‑General; and

(ii) the designated communications provider concerned; and

(d) if the acts or things specified in the proposed technical capability notice:

(i) are directed towards ensuring that the designated communications provider is capable of giving listed help (within the meaning of section 317T) to ASIO in relation to a matter covered by paragraph 317T(2)(a); or

(ii) are by way of giving help to ASIO in relation to a matter covered by paragraph 317T(2)(b);

give a copy of the report to the Inspector‑General of Intelligence and Security; and

(e) if the acts or things specified in the proposed technical capability notice:

(i) are directed towards ensuring that the designated communications provider is capable of giving listed help (within the meaning of section 317T) to an interception agency in relation to a matter covered by paragraph 317T(2)(a); or

(ii) are by way of giving help to an interception agency in relation to a matter covered by paragraph 317T(2)(b);

give a copy of the report to the Commonwealth Ombudsman.

(7) In carrying out an assessment under paragraph (6)(a) in relation to a technical capability notice proposed to be given to a designated communications provider, the assessors must:

(a) consider:

(i) whether the proposed technical capability notice would contravene section 317ZG; and

(ii) whether the requirements imposed by the proposed technical capability notice are reasonable and proportionate; and

(iii) whether compliance with the proposed technical capability notice is practicable; and

(iv) whether compliance with the proposed technical capability notice is technically feasible; and

(v) whether the proposed technical capability notice is the least intrusive measure that would be effective in achieving the legitimate objective of the proposed technical capability notice; and

(b) give the greatest weight to the matter mentioned in subparagraph (a)(i).

(8) In carrying out an assessment under paragraph (6)(a) in relation to a technical capability notice proposed to be given to a designated communications provider, the assessors must consult:

(a) the provider; and

(b) if the acts or things specified in the proposed technical capability notice:

(ii) are by way of giving help to ASIO in relation to a matter covered by paragraph 317T(2)(b);

the Director‑General of Security; and

(ii) are by way of giving help to an interception agency in relation to a matter covered by paragraph 317T(2)(b);

the chief officer of the interception agency.

(9) If:

(a) the assessors have begun to carry out an assessment under paragraph (6)(a) in relation to a technical capability notice proposed to be given to a designated communications provider; and

(b) the provider informs the Attorney‑General that the provider no longer wants the assessment to be carried out;

then:

(d) the assessors must comply with the direction.

(10) If:

(a) the assessors have begun to carry out an assessment under paragraph (6)(a); and

(b) the Attorney‑General withdraws the proposed technical capability notice to which the assessment relates;

then:

(d) the assessors must comply with the direction.

Attorney‑General must have regard to the report of the assessment

(11) If:

(a) a notice is given under subsection (1) in relation to a technical capability notice proposed to be given to a designated communications provider; and

(b) a copy of the report relating to the proposed technical capability notice is given to the Attorney‑General under subsection (6);

the Attorney‑General, in considering whether to proceed to give the technical capability notice, must have regard to the copy of the report.

Technical capability notice information

(12) For the purposes of this Part:

(a) information about the carrying out of an assessment under subsection (6); or

(b) information contained in a report prepared under subsection (6);

is taken to be information about consultation relating to the giving of a technical capability notice.

Prescribed court

(13) For the purposes of this section, prescribed court means:

(a) the High Court; or

(b) the Federal Court of Australia; or

(d) the District Court (or equivalent) of a State or Territory.

317X Variation of technical capability notices

(1) If a technical capability notice has been given to a designated communications provider, the Attorney‑General may, by written notice given to the provider, vary the notice.

Acts or things specified in a varied technical capability notice

(2) The acts or things specified in a varied technical capability notice must be:

(a) in connection with any or all of the eligible activities of the designated communications provider concerned; and

(b) covered by subsection 317T(2).

(3) The acts or things specified in a varied technical capability notice in accordance with paragraph 317T(2)(b) must be listed acts or things, so long as those acts or things:

(a) are in connection with any or all of the eligible activities of the designated communications provider concerned; and

(b) are covered by subsection 317T(2), so far as that subsection relates to paragraph 317T(2)(b).

Note: For listed acts or things, see section 317E.

Decision‑making criteria

(4) The Attorney‑General must not vary a technical capability notice unless the Attorney‑General is satisfied that:

(a) the requirements imposed by the varied notice are reasonable and proportionate; and

(b) compliance with the varied notice is:

(i) practicable; and

(ii) technically feasible.

Note: See also section 317ZAA.

Variation must not extend duration of technical capability notice

(5) A variation of a technical capability notice must not extend the period for which the notice is in force.

Notification obligations

(6) If:

(a) the Attorney‑General varies a technical capability notice; and

(b) the acts or things specified in the varied notice:

(ii) are by way of giving help to ASIO in relation to a matter covered by paragraph 317T(2)(b);

the Attorney‑General must, within 7 days after varying the notice, notify the Inspector‑General of Intelligence and Security that the notice has been varied.

(7) If:

(a) the Attorney‑General varies a technical capability notice; and

(b) the acts or things specified in the varied notice:

(ii) are by way of giving help to an interception agency in relation to a matter covered by paragraph 317T(2)(b);

the Attorney‑General must, within 7 days after varying the notice, notify the Commonwealth Ombudsman that the notice has been varied.

(8) A failure to comply with subsection (6) or (7) does not affect the validity of a variation of a technical capability notice.

317XA Approval of variation of technical capability notice

(1) If a technical capability notice has been given to a designated communications provider, the Attorney‑General must not vary the notice unless:

(a) both:

(i) the Attorney‑General has given the Minister a written notice setting out a proposal to vary the technical capability notice; and

(ii) the Minister has approved the variation of the technical capability notice; or

(b) the provider has waived compliance with subsection 317Y(2) in relation to the variation of the technical capability notice.

(2) An approval under subparagraph (1)(a)(ii) may be given:

(a) orally; or

(b) in writing.

(3) If an approval under subparagraph (1)(a)(ii) is given orally, the Minister must:

(a) make a written record of the approval; and

(b) do so within 48 hours after the approval was given.

(4) The Attorney‑General may make a representation to the Minister about the proposal to vary the technical capability notice.

(5) A representation may deal with:

(a) any of the matters set out in section 317ZAA; and

(b) such other matters (if any) as the Attorney‑General considers relevant.

(6) In considering whether to approve the variation of the technical capability notice, the Minister must have regard to the following matters:

(a) the objectives of the notice as proposed to be varied;

(b) the legitimate interests of the designated communications provider to whom the notice relates;

(c) the impact of the notice as proposed to be varied on the efficiency and international competitiveness of the Australian telecommunications industry;

(d) the representation (if any) that was made under subsection (4);

(e) such other matters (if any) as the Minister considers relevant.

317Y Consultation about a proposal to vary a technical capability notice

(1) If a technical capability notice has been given to a designated communications provider, the Attorney‑General must not vary the notice unless the Attorney‑General has first:

(a) given the provider a written notice (the consultation notice):

(i) setting out a proposal to vary the technical capability notice; and

(ii) inviting the provider to make a submission to the Attorney‑General on the proposed variation; and

(b) considered any submission that was received within the time limit specified in the consultation notice.

(2) A time limit specified in a consultation notice must run for at least 28 days.

(3) If a technical capability notice has been given to a designated communications provider, the rule in subsection (2) does not apply to a variation of the notice if:

(a) the Attorney‑General is satisfied that the technical capability notice should be varied as a matter of urgency; or

(b) compliance with subsection (2) is impracticable; or

(4) For the purposes of paragraph (3)(c), a designated communications provider may waive compliance:

(a) orally; or

(b) in writing.

(5) If compliance is waived orally by a designated communications provider, the provider must:

(a) make a written record of the waiver; and

(b) do so within 48 hours after the waiver was made.

(6) If, under subsection (5), a designated communications provider makes a written record of the waiver, the provider must:

(a) give a copy of the record to the Attorney‑General; and

(b) do so as soon as practicable after the record was made.

317YA Assessment and report

Designated communications provider may request carrying out of assessment

(1) If:

(a) a consultation notice is given to a designated communications provider under subsection 317Y(1) in relation to a proposed variation of a technical capability notice; and

(b) the variation is not of a minor nature;

the provider may, within the time limit specified in the consultation notice, give the Attorney‑General a written notice requesting the carrying out of an assessment of whether the technical capability notice as proposed to be varied would contravene section 317ZG.

Attorney‑General must appoint assessors

(2) If a designated communications provider gives the Attorney‑General a notice under subsection (1) in relation to a technical capability notice as proposed to be varied, the Attorney‑General must appoint 2 persons to carry out an assessment of whether the technical capability notice as proposed to be varied would contravene section 317ZG.

(3) For the purposes of this section, the persons appointed under subsection (2) are to be known as the assessors.

(4) One of the assessors must be a person who:

(a) has knowledge that would enable the person to assess whether proposed technical capability notices would contravene section 317ZG; and

(b) is cleared for security purposes to:

(i) the highest level required by staff members of ASIO; or

(ii) such lower level as the Attorney‑General approves.

(5) One of the assessors must be a person who:

(a) has served as a judge in one or more prescribed courts for a period of 5 years; and

(b) no longer holds a commission as a judge of a prescribed court.

Assessment and report by assessors

(6) As soon as practicable after being appointed under subsection (2), the assessors must:

(a) carry out an assessment of whether the technical capability notice as proposed to be varied would contravene section 317ZG; and

(b) prepare a report of the assessment; and

(i) the Attorney‑General; and

(ii) the designated communications provider concerned; and

(d) if the acts or things specified in the technical capability notice as proposed to be varied:

(ii) are by way of giving help to ASIO in relation to a matter covered by paragraph 317T(2)(b);

give a copy of the report to the Inspector‑General of Intelligence and Security; and

(e) if the acts or things specified in the technical capability notice as proposed to be varied:

(ii) are by way of giving help to an interception agency in relation to a matter covered by paragraph 317T(2)(b);

give a copy of the report to the Commonwealth Ombudsman.

(7) In carrying out an assessment under paragraph (6)(a) in relation to a technical capability notice as proposed to be varied, the assessors must consult:

(a) the designated communications provider concerned; and

(b) if the acts or things specified in the technical capability notice as proposed to be varied:

(ii) are by way of giving help to ASIO in relation to a matter covered by paragraph 317T(2)(b);

the Director‑General of Security; and

(ii) are by way of giving help to an interception agency in relation to a matter covered by paragraph 317T(2)(b);

the chief officer of the interception agency.

(8) If:

(a) the assessors have begun to carry out an assessment under paragraph (6)(a) in relation to the technical capability notice as proposed to be varied; and

(b) the designated communications provider concerned informs the Attorney‑General that the provider no longer wants the assessment to be carried out;

then:

(d) the assessors must comply with the direction.

(9) If:

(a) the assessors have begun to carry out an assessment under paragraph (6)(a); and

(b) the Attorney‑General withdraws the proposed variation of the technical capability notice concerned;

then:

(d) the assessors must comply with the direction.

Attorney‑General must have regard to the report of the assessment

(10) If:

(a) a notice is given under subsection (1) in relation to a proposed variation of a technical capability notice; and

(b) a copy of the report relating to the technical capability notice as proposed to be varied is given to the Attorney‑General under subsection (6);

the Attorney‑General, in considering whether to proceed to vary the technical capability notice, must have regard to the copy of the report.

Technical capability notice information

(11) For the purposes of this Part:

(a) information about the carrying out of an assessment under subsection (6); or

(b) information contained in a report prepared under subsection (6);

is taken to be information about consultation relating to the variation of a technical capability notice.

Prescribed court

(12) For the purposes of this section, prescribed court means:

(a) the High Court; or

(b) the Federal Court of Australia; or

(d) the District Court (or equivalent) of a State or Territory.

317Z Revocation of technical capability notices

(1) If a technical capability notice has been given to a person, the Attorney‑General may, by written notice given to the person, revoke the notice.

(2) If a technical capability notice has been given to a person, and the Attorney‑General is satisfied that:

(a) the requirements imposed by the notice are not reasonable and proportionate; or

(b) compliance with the notice is not:

(i) practicable; and

(ii) technically feasible;

the Attorney‑General must, by written notice given to the person, revoke the notice.

Notification obligations

(3) If:

(a) the Attorney‑General revokes a technical capability notice; and

(b) the acts or things specified in the revoked notice:

(ii) are by way of giving help to ASIO in relation to a matter covered by paragraph 317T(2)(b);

the Attorney‑General must, within 7 days after revoking the notice, notify the Inspector‑General of Intelligence and Security that the notice has been revoked.

(4) If:

(a) the Attorney‑General revokes a technical capability notice; and

(b) the acts or things specified in the revoked notice:

(ii) are by way of giving help to an interception agency in relation to a matter covered by paragraph 317T(2)(b);

the Attorney‑General must, within 7 days after revoking the notice, notify the Commonwealth Ombudsman that the notice has been revoked.

(5) A failure to comply with subsection (3) or (4) does not affect the validity of a revocation of a technical capability notice.

317ZAA Whether requirements imposed by a technical capability notice are reasonable and proportionate

In considering whether the requirements imposed by a technical capability notice or a varied technical capability notice are reasonable and proportionate, the Attorney‑General must have regard to the following matters:

(a) the interests of national security;

(b) the interests of law enforcement;

(d) the objectives of the notice;

(e) the availability of other means to achieve the objectives of the notice;

(ea) whether the requirements, when compared to other forms of industry assistance known to the Attorney‑General, are the least intrusive form of industry assistance so far as the following persons are concerned:

(i) persons whose activities are not of interest to ASIO;

(ii) persons whose activities are not of interest to interception agencies;

(eb) whether the requirements are necessary;

(f) the legitimate expectations of the Australian community relating to privacy and cybersecurity;

(g) such other matters (if any) as the Attorney‑General considers relevant.

Division 5—Compliance and enforcement

317ZA Compliance with notices—carriers and carriage service providers

(1) A carrier or carriage service provider must comply with a requirement under:

(a) a technical assistance notice; or

(b) a technical capability notice;

to the extent that the carrier or provider is capable of doing so.

(2) A person must not:

(a) aid, abet, counsel or procure a contravention of subsection (1); or

(b) induce, whether by threats or promises or otherwise, a contravention of subsection (1); or

(d) conspire with others to effect a contravention of subsection (1).

(3) Subsections (1) and (2) are civil penalty provisions.

Note: Part 31 provides for pecuniary penalties for breaches of civil penalty provisions.

317ZB Compliance with notices—designated communications provider (other than a carrier or carriage service provider)

(1) A designated communications provider (other than a carrier or carriage service provider) must comply with a requirement under:

(a) a technical assistance notice; or

(b) a technical capability notice;

to the extent that the provider is capable of doing so.

Civil penalty:

(a) if the provider is a body corporate—47,619 penalty units; or

(b) if the provider is not a body corporate—238 penalty units.

(2) The pecuniary penalty for a contravention by a designated communications provider of subsection (1) must not be more than:

(a) if the provider is a body corporate—47,619 penalty units; or

(b) if the provider is not a body corporate—238 penalty units.

(3) Subsection 82(5) of the Regulatory Powers (Standard Provisions) Act 2014 does not apply to a contravention of subsection (1) of this section.

(4) Sections 564 and 572B do not apply to a contravention of subsection (1) of this section.

(5) In proceedings for a civil penalty order against a designated communications provider for a contravention of subsection (1) in relation to:

(a) a requirement under a technical assistance notice to do an act or thing in a foreign country; or

(b) a requirement under a technical capability notice to do an act or thing in a foreign country;

it is a defence if the provider proves that compliance with the requirement in the foreign country would contravene a law of the foreign country.

317ZC Civil penalty provision

Enforceable civil penalty provision

(1) Section 317ZB of this Act is enforceable under Part 4 of the Regulatory Powers (Standard Provisions) Act 2014.

Note: Part 4 of the Regulatory Powers (Standard Provisions) Act 2014 allows a civil penalty provision to be enforced by obtaining an order for a person to pay a pecuniary penalty for the contravention of the provision.

Authorised applicant

(2) For the purposes of Part 4 of the Regulatory Powers (Standard Provisions) Act 2014, the Communications Access Co‑ordinator is an authorised applicant in relation to section 317ZB of this Act.

Relevant courts

(3) For the purposes of Part 4 of the Regulatory Powers (Standard Provisions) Act 2014, the Federal Court and the Federal Circuit and Family Court of Australia (Division 2) are relevant courts in relation to section 317ZB of this Act.

Extension to external Territories etc.

(4) Part 4 of the Regulatory Powers (Standard Provisions) Act 2014, as it applies in relation to section 317ZB of this Act, extends to:

(a) every external Territory; and

(b) acts, omissions, matters and things outside Australia.

317ZD Enforceable undertakings

Enforceable provision

(1) Section 317ZB of this Act is enforceable under Part 6 of the Regulatory Powers (Standard Provisions) Act 2014.

Authorised person

(2) The Communications Access Co‑ordinator is an authorised person in relation to section 317ZB of this Act for the purposes of Part 6 of the Regulatory Powers (Standard Provisions) Act 2014.

Relevant courts

(3) The Federal Court and the Federal Circuit and Family Court of Australia (Division 2) are relevant courts in relation to section 317ZB of this Act for the purposes of Part 6 of the Regulatory Powers (Standard Provisions) Act 2014.

Extension to external Territories etc.

(4) Part 6 of the Regulatory Powers (Standard Provisions) Act 2014, as it applies in relation to section 317ZB of this Act, extends to:

(a) every external Territory; and

(b) acts, omissions, matters and things outside Australia.

317ZE Injunctions

Enforceable provision

(1) Section 317ZB of this Act is enforceable under Part 7 of the Regulatory Powers (Standard Provisions) Act 2014.

Authorised person

(2) The Communications Access Co‑ordinator is an authorised person in relation to section 317ZB of this Act for the purposes of Part 7 of the Regulatory Powers (Standard Provisions) Act 2014.

Relevant courts

(3) The Federal Court and the Federal Circuit and Family Court of Australia (Division 2) are relevant courts in relation to section 317ZB of this Act for the purposes of Part 7 of the Regulatory Powers (Standard Provisions) Act 2014.

Extension to external Territories etc.

(4) Part 7 of the Regulatory Powers (Standard Provisions) Act 2014, as it applies in relation to section 317ZB of this Act, extends to:

(a) every external Territory; and

(b) acts, omissions, matters and things outside Australia.

Division 6—Unauthorised disclosure of information etc.

317ZF Unauthorised disclosure of information

(1) A person commits an offence if:

(a) the person discloses information; and

(b) the person is or was:

(i) a designated communications provider; or

(ii) an employee of a designated communications provider; or

(iii) a contracted service provider of a designated communications provider; or

(iv) an employee of a contracted service provider of a designated communications provider; or

(v) an entrusted ASIO person; or

(vi) an entrusted ASIS person; or

(vii) an entrusted ASD person; or

(viii) an officer of an interception agency; or

(ix) an officer or employee of the Commonwealth, a State or a Territory; or

(x) a person appointed under subsection 317WA(2); or

(xa) a person appointed under subsection 317YA(2); or

(xi) an arbitrator appointed under section 317ZK; and

(i) is technical assistance notice information; or

(ii) is technical capability notice information; or

(iii) is technical assistance request information; or

(iv) was obtained in accordance with a technical assistance notice; or

(v) was obtained in accordance with a technical capability notice; or

(vi) was obtained in accordance with a technical assistance request; and

(d) if the information is covered by subparagraph (c)(i), (ii) or (iii)—the information has come to the person’s knowledge, or into the person’s possession:

(i) if the person is or was a designated communications provider—in connection with the person’s capacity as such a provider; or

(ii) if the person is or was an employee of a designated communications provider—because the person is or was employed by the provider in connection with its business as such a provider; or

(iii) if the person is or was a contracted service provider of a designated communications provider—in connection with the person’s business as such a contracted service provider; or

(iv) if the person is or was an employee of a contracted service provider of a designated communications provider—because the person is or was employed by the contractor in connection with its business as such a contracted service provider; or

(v) if the person is or was an entrusted ASIO person—in the person’s capacity as such an entrusted ASIO person; or

(vi) if the person is or was an entrusted ASIS person—in the person’s capacity as such an entrusted ASIS person; or

(vii) if the person is or was an entrusted ASD person—in the person’s capacity as such an entrusted ASD person; or

(viii) if the person is or was an officer of an interception agency—in the person’s capacity as such an officer; or

(ix) if the person is or was an officer or employee of the Commonwealth, a State or a Territory—in the person’s capacity as such an officer or employee; or

(ixa) if the person is or was a person appointed under subsection 317WA(2)—in the person’s capacity as such an appointee; or

(ixb) if the person is or was a person appointed under subsection 317YA(2)—in the person’s capacity as such an appointee; or

(x) if the person is or was an arbitrator appointed under section 317ZK—in the person’s capacity as such an arbitrator; and

(e) if the information is covered by subparagraph (c)(iv), (v) or (vi)—the information has come to the person’s knowledge, or into the person’s possession:

(i) if the person is or was an entrusted ASIO person—in the person’s capacity as such an entrusted ASIO person; or

(ii) if the person is or was an entrusted ASIS person—in the person’s capacity as such an entrusted ASIS person; or

(iii) if the person is or was an entrusted ASD person—in the person’s capacity as such an entrusted ASD person; or

(iv) if the person is or was an officer of an interception agency—in the person’s capacity as such an officer; or

(v) if the person is or was an officer or employee of the Commonwealth, a State or a Territory—in the person’s capacity as such an officer or employee; or

(vi) if the person is or was an arbitrator appointed under section 317ZK—in the person’s capacity as such an arbitrator.

Penalty: Imprisonment for 5 years.

Exceptions

(2) Subsection (1) does not apply if the disclosure was authorised under subsection (3), (5), (5A), (5B), (5C), (6), (7), (8), (9), (10), (11), (12A), (12B), (12C), (12D), (13), (14), (15) or (16).

Note: Except as provided by subsection (2A) or (2B), a defendant bears an evidential burden in relation to the matters in this subsection—see subsection 13.3(3) of the Criminal Code.

(2A) Despite subsection 13.3(3) of the Criminal Code, in a prosecution for an offence against subsection (1) of this section, an IGIS official does not bear an evidential burden in relation to the matters in subsection (2) of this section, to the extent to which that subsection relates to subsection (5) of this section.

(2B) Despite subsection 13.3(3) of the Criminal Code, in a prosecution for an offence against subsection (1) of this section, an Ombudsman official does not bear an evidential burden in relation to the matters in subsection (2) of this section, to the extent to which that subsection relates to subsection (5A), (5B) or (5C) of this section.

Authorised disclosures—general

(3) A person covered by paragraph (1)(b) may disclose technical assistance notice information, technical capability notice information or technical assistance request information:

(a) in connection with the administration or execution of this Part; or

(b) for the purposes of any legal proceedings arising out of or otherwise related to this Part or of any report of any such proceedings; or

(d) in connection with the performance of functions, or the exercise of powers, by:

(i) ASIO; or

(ii) the Australian Secret Intelligence Service; or

(iii) the Australian Signals Directorate; or

(iv) an interception agency; or

(e) for the purpose of obtaining legal advice in relation to this Part; or

(f) to an IGIS official for the purpose of exercising powers, or performing functions or duties, as an IGIS official; or

(g) to an Ombudsman official for the purpose of exercising powers, or performing functions or duties, as an Ombudsman official.

(4) For the purposes of subsection (3), this Part includes:

(a) any other provision of this Act, so far as that other provision relates to this Part; and

(b) the Regulatory Powers (Standard Provisions) Act 2014, so far as that Act relates to this Part.

Authorised disclosures—IGIS official

(5) An IGIS official may disclose:

(a) technical assistance notice information; or

(b) technical capability notice information; or

in connection with the IGIS official exercising powers, or performing functions or duties, as an IGIS official.

Authorised disclosures—Ombudsman official

(5A) An Ombudsman official may disclose:

(a) technical assistance notice information; or

(b) technical capability notice information; or

in connection with the Ombudsman official exercising powers, or performing functions or duties, as an Ombudsman official.

(5B) If a technical assistance notice is given by the chief officer of an interception agency of a State or Territory, an Ombudsman official may disclose technical assistance notice information that relates to the notice to an officer or employee of an authority that is the State or Territory inspecting authority in relation to the interception agency, so long as the disclosure is in connection with the officer or employee exercising powers, or performing functions or duties, as an officer or employee of the State or Territory inspecting authority.

(5C) If a technical assistance request is given by the chief officer of an interception agency of a State or Territory, an Ombudsman official may disclose technical assistance request information that relates to the request to an officer or employee of an authority that is the State or Territory inspecting authority in relation to the interception agency, so long as the disclosure is in connection with the officer or employee exercising powers, or performing functions or duties, as an officer or employee of the State or Territory inspecting authority.

Authorised disclosures—information sharing

(6) The Director‑General of Security or the Communications Access Co‑ordinator may disclose information that is:

(a) technical assistance notice information; or

(b) technical capability notice information; or

to the chief officer of an interception agency for purposes relating to the performance of functions, or the exercise of powers, by the interception agency.

(7) The chief officer of an interception agency may disclose information that is:

(a) technical assistance notice information; or

(b) technical capability notice information; or

to the chief officer of another interception agency for purposes relating to the performance of functions, or the exercise of powers, by the other interception agency.

(8) The Director‑General of Security, the Director‑General of the Australian Signals Directorate or the chief officer of an interception agency may disclose information that is:

(a) technical assistance notice information; or

(b) technical capability notice information; or

to the Director‑General of the Australian Secret Intelligence Service for purposes relating to the performance of functions, or the exercise of powers, by the Australian Secret Intelligence Service.

(9) The Director‑General of Security, the Director‑General of the Australian Secret Intelligence Service or the chief officer of an interception agency may disclose information that is:

(a) technical assistance notice information; or

(b) technical capability notice information; or

to the Director‑General of the Australian Signals Directorate for purposes relating to the performance of functions, or the exercise of powers, by the Australian Signals Directorate.

(10) The Communications Access Co‑ordinator, the Director‑General of the Australian Secret Intelligence Service, the Director‑General of the Australian Signals Directorate or the chief officer of an interception agency may disclose information that is:

(a) technical assistance notice information; or

(b) technical capability notice information; or

to the Director‑General of Security for purposes relating to the performance of functions, or the exercise of powers, by ASIO.

(11) The Director‑General of Security or the chief officer of an interception agency may disclose information that is:

(a) technical assistance notice information; or

(b) technical capability notice information; or

to the Communications Access Co‑ordinator for purposes relating to the performance of functions, or the exercise of powers, by the Communications Access Co‑ordinator.

(12) Before disclosing information under subsection (6), (7), (8), (9) or (10), the Director‑General of Security, the Director‑General of the Australian Secret Intelligence Service, the Director‑General of the Australian Signals Directorate or the chief officer of an interception agency, as the case requires, must notify the Communications Access Co‑ordinator of the proposed disclosure.

Authorised disclosures—Communications Access Co‑ordinator

(12A) If:

(a) the Attorney‑General has given a technical capability notice; and

(b) the acts or things specified in the notice:

(i) are directed towards ensuring that a designated communications provider is capable of giving listed help (within the meaning of section 317T) to an interception agency of a State or Territory in relation to a matter covered by paragraph 317T(2)(a); or

(ii) are by way of giving help to an interception agency of a State or Territory in relation to a matter covered by paragraph 317T(2)(b);

the Communications Access Co‑ordinator may disclose technical capability notice information that relates to the notice to an officer or employee of an authority that is the State or Territory inspecting authority in relation to the interception agency, so long as the disclosure is in connection with the officer or employee exercising powers, or performing functions or duties, as an officer or employee of the State or Territory inspecting authority.

Authorised disclosures—State or Territory inspecting authority

(12B) If a technical assistance notice has been given to a designated communications provider by the chief officer of an interception agency of a State or Territory:

(a) the designated communications provider; or

(b) an employee of the designated communications provider; or

(d) an employee of a contracted service provider of the designated communications provider;

may disclose technical assistance notice information that relates to the notice to an officer or employee of an authority that is the State or Territory inspecting authority in relation to the interception agency, so long as the disclosure is in connection with the officer or employee exercising powers, or performing functions or duties, as an officer or employee of the State or Territory inspecting authority.

(12C) If a technical assistance request has been given to a designated communications provider by the chief officer of an interception agency of a State or Territory:

(a) the designated communications provider; or

(b) an employee of the designated communications provider; or

(d) an employee of a contracted service provider of the designated communications provider;

may disclose technical assistance request information that relates to the request to an officer or employee of an authority that is the State or Territory inspecting authority in relation to the interception agency, so long as the disclosure is in connection with the officer or employee exercising powers, or performing functions or duties, as an officer or employee of the State or Territory inspecting authority.

(12D) If:

(a) technical assistance notice information is disclosed under subsection (12B); or

(b) technical assistance request information is disclosed under subsection (12C);

to an officer or employee of an authority that is the State or Territory inspecting authority in relation to an interception agency, the officer or employee may disclose the information in connection with the officer or employee exercising powers, or performing functions or duties, as an officer or employee of the State or Territory inspecting authority.

Authorised disclosures—statistics

(13) A person who is:

(a) a designated communications provider; or

(b) an employee of a designated communications provider; or

(d) an employee of a contracted service provider of a designated communications provider;

may, in the person’s capacity as such a provider or employee, disclose:

(e) the total number of technical assistance notices given to the provider during a period of at least 6 months; or

(f) the total number of technical capability notices given to the provider during a period of at least 6 months; or

(g) the total number of technical assistance requests given to the provider during a period of at least 6 months.

Note: This subsection authorises the disclosure of aggregate statistical information. That information cannot be broken down:

(a) by agency; or

(b) in any other way.

Other authorised disclosures

(14) If a technical assistance notice has been given to a designated communications provider by the Director‑General of Security, the Director‑General of Security may, if requested to do so by the designated communications provider, authorise:

(a) the designated communications provider; or

(b) a specified employee of the designated communications provider; or

(d) a specified employee of a contracted service provider of the designated communications provider;

to disclose, in accordance with the conditions specified in the authorisation, specified technical assistance notice information that relates to the notice.

(15) If a technical assistance notice has been given to a designated communications provider by the chief officer of an interception agency, the chief officer may, if requested to do so by the designated communications provider, authorise:

(a) the designated communications provider; or

(b) a specified employee of the designated communications provider; or

(d) a specified employee of a contracted service provider of the designated communications provider;

to disclose, in accordance with the conditions specified in the authorisation, specified technical assistance notice information that relates to the notice.

(16) If a technical capability notice has been given to a designated communications provider, the Attorney‑General may, if requested to do so by the designated communications provider, authorise:

(a) the designated communications provider; or

(b) a specified employee of the designated communications provider; or

(d) a specified employee of a contracted service provider of the designated communications provider;

to disclose, in accordance with the conditions specified in the authorisation, specified technical capability notice information that relates to the notice.

(17) An authorisation under subsection (14), (15) or (16) must be in writing.

317ZFA Powers of a court

(1) In a proceeding under, or arising out of:

(a) this Part; or

(b) any other provision of this Act, so far as that other provision relates to this Part; or

a court may make such orders as the court considers appropriate in relation to the disclosure, protection, storage, handling or destruction, in the proceeding, of:

(d) technical assistance notice information; or

(e) technical capability notice information; or

(f) technical assistance request information;

if the court is satisfied that it is in the public interest to make such orders.

(2) The powers conferred on a court by subsection (1) are in addition to any other powers of the court.

Division 7—Limitations

317ZG Designated communications provider must not be requested or required to implement or build a systemic weakness or systemic vulnerability etc.

(1) A technical assistance request, technical assistance notice or technical capability notice must not have the effect of:

(a) requesting or requiring a designated communications provider to implement or build a systemic weakness, or a systemic vulnerability, into a form of electronic protection; or

(b) preventing a designated communications provider from rectifying a systemic weakness, or a systemic vulnerability, in a form of electronic protection.

(2) The reference in paragraph (1)(a) to implement or build a systemic weakness, or a systemic vulnerability, into a form of electronic protection includes a reference to implement or build a new decryption capability in relation to a form of electronic protection.

(3) The reference in paragraph (1)(a) to implement or build a systemic weakness, or a systemic vulnerability, into a form of electronic protection includes a reference to one or more actions that would render systemic methods of authentication or encryption less effective.

(4) Subsections (2) and (3) are enacted for the avoidance of doubt.

(4A) In a case where a weakness is selectively introduced to one or more target technologies that are connected with a particular person, the reference in paragraph (1)(a) to implement or build a systemic weakness into a form of electronic protection includes a reference to any act or thing that will, or is likely to, jeopardise the security of any information held by any other person.

(4B) In a case where a vulnerability is selectively introduced to one or more target technologies that are connected with a particular person, the reference in paragraph (1)(a) to implement or build a systemic vulnerability into a form of electronic protection includes a reference to any act or thing that will, or is likely to, jeopardise the security of any information held by any other person.

(4C) For the purposes of subsections (4A) and (4B), an act or thing will, or is likely to, jeopardise the security of information if the act or thing creates a material risk that otherwise secure information can be accessed by an unauthorised third party.

(5) A technical assistance request, technical assistance notice or technical capability notice has no effect to the extent (if any) to which it would have an effect covered by paragraph (1)(a) or (b).

317ZGA Limits on technical capability notices

(1) If:

(a) a designated communications provider supplies a particular kind of telecommunications service; and

(b) the service involves, or will involve, the use of a telecommunications system;

a technical capability notice has no effect to the extent (if any) to which it requires the provider to ensure that the kind of service, or the system:

(c) has the capability to enable a communication passing over the system to be intercepted in accordance with an interception warrant; or

(d) has the capability to transmit lawfully intercepted information to the delivery points applicable in respect of that kind of service; or

(e) has a delivery capability.

Note 1: Part 5‑3 of the Telecommunications (Interception and Access) Act 1979 deals with interception capability.

Note 2: Part 5‑5 of the Telecommunications (Interception and Access) Act 1979 deals with delivery capability.

(2) For the purposes of subsection (1), ensuring that a kind of service or a system has a particular capability includes ensuring that the capability is developed, installed and maintained.

(3) A technical capability notice has no effect to the extent (if any) to which it requires a designated communications provider to keep, or cause to be kept:

(a) information of a kind specified in or under section 187AA of the Telecommunications (Interception and Access) Act 1979; or

(b) documents containing information of that kind;

relating to any communication carried by means of a service to which Part 5‑1A of the Telecommunications (Interception and Access) Act 1979 applies.

Note: Part 5‑1A of the Telecommunications (Interception and Access) Act 1979 deals with data retention.

(4) A technical capability notice has no effect to the extent (if any) to which it requires a designated communications provider to keep, or cause to be kept, information that:

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

(b) was obtained by the provider only as a result of providing the service.

Note: This subsection ensures that a technical capability notice cannot require a designated communications provider to keep information about subscribers’ web browsing history.

(5) An expression used in this section and in Chapter 5 of the Telecommunications (Interception and Access) Act 1979 has the same meaning in this section as it has in that Chapter.

317ZH General limits on technical assistance requests, technical assistance notices and technical capability notices

(1) A technical assistance request that relates to an agency, or a technical assistance notice that relates to an agency, or a technical capability notice that relates to an agency, has no effect to the extent (if any) to which it would request or require a designated communications provider to do an act or thing for which the agency, or an officer of the agency, would be required to have or obtain a warrant or authorisation under any of the following laws:

(a) the Telecommunications (Interception and Access) Act 1979;

(b) the Surveillance Devices Act 2004;

(d) the Australian Security Intelligence Organisation Act 1979;

(f) a law of the Commonwealth (other than this Part) that is not covered by paragraph (a), (b), (c) or (d);

(g) a law of a State or Territory.

(2) For the purposes of subsection (1):

(a) assume that each law mentioned in that subsection applied both within and outside Australia; and

(b) assume that each reference in Part 13 to a carriage service provider included a reference to a designated communications provider.

(3) A technical assistance request, technical assistance notice or technical capability notice has no effect to the extent (if any) to which it would request or require a designated communications provider to:

(a) use a surveillance device (within the meaning of the Surveillance Devices Act 2004); or

(b) access data held in a computer (within the meaning of the Surveillance Devices Act 2004);

if a law of a State or Territory requires a warrant or authorisation for that use or access.

(4) To avoid doubt, subsection (1) or (3) does not prevent a technical assistance request, technical assistance notice or technical capability notice from requesting or requiring a designated communications provider to do an act or thing by way of giving help to:

(a) ASIO; or

(b) an interception agency;

in relation to:

(ca) in the case of a technical assistance request—a matter covered by subparagraph 317G(2)(b)(v) or (vi); or

(d) in the case of a technical capability notice—a matter covered by subparagraph 317T(2)(b)(i) or (ii);

if the doing of the act or thing would:

(e) assist in, or facilitate, giving effect to a warrant or authorisation under a law of the Commonwealth, a State or a Territory; or

(f) give effect to a warrant or authorisation under a law of the Commonwealth.

(5) To avoid doubt, subsection (1) or (3) does not prevent a technical capability notice from requiring a designated communications provider to do an act or thing directed towards ensuring that the provider is capable of giving listed help (within the meaning of section 317T) to:

(a) ASIO; or

(b) an interception agency;

in relation to a matter covered by subparagraph 317T(2)(a)(i) or (ii), if the doing of the act or thing would:

(c) assist in, or facilitate, giving effect to a warrant or authorisation under a law of the Commonwealth, a State or a Territory; or

(d) give effect to a warrant or authorisation under a law of the Commonwealth.

Interpretation

(6) For the purposes of this section, a technical assistance request relates to an agency if:

(a) if the agency is ASIO—the request was given by the Director‑General of Security; or

(b) if the agency is the Australian Secret Intelligence Service—the request was given by the Director‑General of the Australian Secret Intelligence Service; or

(c) if the agency is the Australian Signals Directorate—the request was given by the Director‑General of the Australian Signals Directorate; or

(d) if the agency is an interception agency—the request was given by the chief officer of the interception agency.

(7) For the purposes of this section, a technical assistance notice relates to an agency if:

(a) if the agency is ASIO—the notice was given by the Director‑General of Security; or

(b) if the agency is an interception agency—the notice was given by the chief officer of the interception agency.

(8) For the purposes of this section, a technical capability notice relates to an agency if:

(a) if the agency is ASIO—the acts or things specified in the notice:

(ii) are by way of giving help to ASIO in relation to a matter covered by paragraph 317T(2)(b); or

(b) if the agency is an interception agency—the acts or things specified in the notice:

(i) are directed towards ensuring that a designated communications provider is capable of giving listed help (within the meaning of section 317T) to the interception agency in relation to a matter covered by paragraph 317T(2)(a); or

(ii) are by way of giving help to the interception agency in relation to a matter covered by paragraph 317T(2)(b).

(9) For the purposes of this section, agency means:

(a) ASIO; or

(b) the Australian Secret Intelligence Service; or

(d) an interception agency.

(10) For the purposes of this section, officer of an agency means:

(a) if the agency is ASIO:

(i) the Director‑General of Security; or

(ii) an ASIO employee; or

(b) if the agency is the Australian Secret Intelligence Service:

(i) the Director‑General of the Australian Secret Intelligence Service; or

(ii) a staff member of the Australian Secret Intelligence Service; or

(i) the Director‑General of the Australian Signals Directorate; or

(ii) a staff member of the Australian Signals Directorate; or

(d) if the agency is an interception agency:

(i) the chief officer of the interception agency; or

(ii) an officer of the interception agency.

Division 8—General provisions

317ZJ Immunity

(1) A designated communications provider is not subject to any civil liability for, or in relation to, an act or thing done by the provider:

(a) in compliance; or

(b) in good faith in purported compliance;

with:

(d) a technical capability notice.

(2) Paragraph (1)(b) does not apply to an act or thing done by a designated communications provider unless the act or thing is in connection with any or all of the eligible activities of the provider.

(3) An officer, employee or agent of a designated communications provider is not subject to any civil liability for, or in relation to, an act or thing done by the officer, employee or agent in connection with an act or thing done by the provider:

(a) in compliance; or

(b) in good faith in purported compliance;

with:

(d) a technical capability notice.

(4) Paragraph (3)(b) does not apply to an act or thing done by a designated communications provider unless the act or thing is in connection with any or all of the eligible activities of the provider.

317ZK Terms and conditions on which help is to be given etc.

Scope

(1) This section applies if a designated communications provider is subject to a requirement under:

(a) a technical assistance notice; or

(b) a technical capability notice;

unless:

(c) in the case of a requirement under a technical assistance notice given by the Director‑General of Security—the Director‑General of Security declares in writing that the Director‑General of Security is satisfied that it would be contrary to the public interest for this section to apply to the requirement; or

(d) in the case of a requirement under a technical assistance notice given by the chief officer of an interception agency—the chief officer declares in writing that the chief officer is satisfied that it would be contrary to the public interest for this section to apply to the requirement; or

(e) in the case of a requirement under a technical capability notice—the Attorney‑General declares in writing that the Attorney‑General is satisfied that it would be contrary to the public interest for this section to apply to the requirement.

(2) In deciding whether it would be contrary to the public interest for this section to apply to a requirement, the Director‑General of Security, the chief officer or the Attorney‑General, as the case may be, must have regard to the following matters:

(a) in the case of a requirement under a technical assistance notice given by the chief officer of an interception agency or a requirement under a technical capability notice that relates to an interception agency—the interests of law enforcement;

(b) in the case of a requirement under a technical assistance notice given by the Director‑General of Security or a requirement under a technical capability notice that relates to ASIO—the interests of national security;

(d) the extent to which compliance with the requirement will impose a regulatory burden on the provider;

(e) the reasons for the giving of the technical assistance notice or technical capability notice, as the case requires;

(f) such other matters (if any) as the Director‑General of Security, the chief officer or the Attorney‑General, as the case may be, considers relevant.

Basis of compliance

(3) The designated communications provider must comply with the requirement on the basis that the provider neither:

(a) profits from complying with the requirement; nor

(b) bears the reasonable costs of complying with the requirement;

unless:

(d) in the case of a requirement under a technical assistance notice given by the Director‑General of Security—the Director‑General of Security declares in writing that the Director‑General of Security is satisfied that it would be contrary to the public interest for this subsection to apply to the requirement; or

(e) in the case of a requirement under a technical assistance notice given by the chief officer of an interception agency—the chief officer declares in writing that the chief officer is satisfied that it would be contrary to the public interest for this subsection to apply to the requirement; or

(f) in the case of a requirement under a technical capability notice—the Attorney‑General declares in writing that the Attorney‑General is satisfied that it would be contrary to the public interest for this subsection to apply to the requirement.

Note: For applicable costs negotiator, see subsection (16).

(3A) In deciding whether it would be contrary to the public interest for subsection (3) to apply to the requirement, the Director‑General of Security, the chief officer or the Attorney‑General, as the case may be, must have regard to the following matters:

(d) the extent to which compliance with the requirement will impose a regulatory burden on the provider;

(e) the reasons for the giving of the technical assistance notice or technical capability notice, as the case requires;

(f) such other matters (if any) as the Director‑General of Security, the chief officer or the Attorney‑General, as the case may be, considers relevant.

Terms and conditions

(4) The designated communications provider must comply with the requirement on such terms and conditions as are:

(a) agreed between the following parties:

(i) the provider;

(ii) the applicable costs negotiator; or

(b) failing agreement, determined by an arbitrator appointed by the parties.

Note: For applicable costs negotiator, see subsection (16).

(5) If:

(a) the parties fail to agree on the appointment of an arbitrator; and

(b) one of the parties is a carrier or carriage service provider;

the ACMA is to appoint the arbitrator.

(6) If:

(a) the parties fail to agree on the appointment of an arbitrator; and

(b) none of the parties is a carrier or carriage service provider;

the Attorney‑General is to appoint the arbitrator.

(6A) Subsection (4) does not apply to the requirement if:

(a) in the case of a requirement under a technical assistance notice given by the Director‑General of Security—the Director‑General of Security declares in writing that the Director‑General of Security is satisfied that it would be contrary to the public interest for subsection (4) to apply to the requirement; or

(b) in the case of a requirement under a technical assistance notice given by the chief officer of an interception agency—the chief officer declares in writing that the chief officer is satisfied that it would be contrary to the public interest for subsection (4) to apply to the requirement; or

(c) in the case of a requirement under a technical capability notice—the Attorney‑General declares in writing that the Attorney‑General is satisfied that it would be contrary to the public interest for subsection (4) to apply to the requirement.

(6B) In deciding whether it would be contrary to the public interest for subsection (4) to apply to the requirement, the Director‑General of Security, the chief officer or the Attorney‑General, as the case may be, must have regard to the following matters:

(d) the extent to which compliance with the requirement will impose a regulatory burden on the provider;

(e) the reasons for the giving of the technical assistance notice or technical capability notice, as the case requires;

(f) such other matters (if any) as the Director‑General of Security, the chief officer or the Attorney‑General, as the case may be, considers relevant.

Arbitration

(7) An arbitrator appointed under subsection (5) or (6) must be:

(a) a person specified under subsection (8); or

(b) a person who belongs to a class of persons specified under subsection (11).

(8) The Home Affairs Minister may, by writing, specify one or more persons for the purposes of paragraph (7)(a).

(9) An instrument made under subsection (8) is not a legislative instrument.

(10) Subsection 33(3AB) of the Acts Interpretation Act 1901 does not apply to the power conferred by subsection (8).

(11) The Home Affairs Minister may, by legislative instrument, specify a class of persons for the purposes of paragraph (7)(b).

(12) Before making an instrument under subsection (8) or (11), the Home Affairs Minister must consult the Attorney‑General.

(13) If an arbitration under this section is conducted by an arbitrator appointed by the ACMA, the cost of the arbitration must be apportioned equally between the parties.

(14) The Home Affairs Minister may, by legislative instrument, make provision for and in relation to the conduct of an arbitration under this section.

Acquisition of property

(15) This section has no effect to the extent (if any) to which its operation would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) otherwise than on just terms (within the meaning of that paragraph).

Applicable costs negotiator

(16) For the purposes of this section, the applicable costs negotiator is:

(a) in the case of a requirement under a technical assistance notice given by the Director‑General of Security—the Director‑General of Security; or

(b) in the case of a requirement under a technical assistance notice given by the chief officer of an interception agency—the chief officer; or

(c) in the case of a requirement under a technical capability notice—the person specified in the notice, in accordance with subsection 317T(12), as the applicable costs negotiator for the notice.

Technical capability notice that relates to ASIO

(17) For the purposes of this section, a technical capability notice relates to ASIO if the acts or things specified in the notice:

(a) are directed towards ensuring that a designated communications provider is capable of giving listed help (within the meaning of section 317T) to ASIO in relation to a matter covered by paragraph 317T(2)(a); or

(b) are by way of giving help to ASIO in relation to a matter covered by paragraph 317T(2)(b).

Technical capability notice that relates to an interception agency

(18) For the purposes of this section, a technical capability notice relates to an interception agency if the acts or things specified in the notice:

(a) are directed towards ensuring that a designated communications provider is capable of giving listed help (within the meaning of section 317T) to the interception agency in relation to a matter covered by paragraph 317T(2)(a); or

(b) are by way of giving help to the interception agency in relation to a matter covered by paragraph 317T(2)(b).

Technical assistance notice information

(19) For the purposes of this Part, information about a declaration under:

(a) paragraph (1)(c); or

(b) paragraph (1)(d); or

(d) paragraph (3)(e); or

(e) paragraph (6A)(a); or

(f) paragraph (6A)(b);

is taken to be information about a technical assistance notice.

Technical capability notice information

(20) For the purposes of this Part, information about a declaration under paragraph (1)(e), (3)(f) or (6A)(c) is taken to be information about a technical capability notice.

317ZKA Notification obligations

(1) If the Director‑General of Security makes a declaration under paragraph 317ZK(1)(c), (3)(d) or (6A)(a), the Director‑General of Security must, within 7 days after making the declaration, notify the Inspector‑General of Intelligence and Security of the making of the declaration.

(2) If the chief officer of an interception agency makes a declaration under paragraph 317ZK(1)(d), (3)(e) or (6A)(b), the chief officer must, within 7 days after making the declaration, notify the Commonwealth Ombudsman of the making of the declaration.

(3) If:

(a) the Attorney‑General makes a declaration under paragraph 317ZK(1)(e), (3)(f) or (6A)(c) in relation to a technical capability notice; and

(b) the acts or things specified in the notice:

(ii) are by way of giving help to ASIO in relation to a matter covered by paragraph 317T(2)(b);

the Attorney‑General must, within 7 days after making the declaration, notify the Inspector‑General of Intelligence and Security of the making of the declaration.

(4) If:

(a) the Attorney‑General makes a declaration under paragraph 317K(1)(e), (3)(f) or (6A)(c) in relation to a technical capability notice; and

(b) the acts or things specified in the notice:

(ii) are by way of giving help to an interception agency in relation to a matter covered by paragraph 317T(2)(b);

the Attorney‑General must, within 7 days after making the declaration, notify the Commonwealth Ombudsman of the making of the declaration.

(5) A failure to comply with subsection (1), (2), (3) or (4) does not affect the validity of a declaration under:

(a) paragraph 317ZK(1)(c); or

(b) paragraph 317ZK(1)(d); or

(d) paragraph 317ZK(3)(d); or

(e) paragraph 317ZK(3)(e); or

(f) paragraph 317ZK(3)(f); or

(g) paragraph 317ZK(6A)(a); or

(h) paragraph 317ZK(6A)(b); or

(i) paragraph 317ZK(6A)(c).

317ZL Service of notices etc.

Scope

(1) This section applies to:

(a) a summons or process in any proceedings under, or connected with, this Part; or

(b) a summons or process in any proceedings under, or connected with, the Regulatory Powers (Standard Provisions) Act 2014, so far as that Act relates to this Part; or

(d) a notice under the Regulatory Powers (Standard Provisions) Act 2014, so far as that Act relates to this Part; or

(e) a technical capability notice.

Address for service of summons, process or notice

(2) If:

(a) the summons, process or notice, as the case may be, is required to be served on, or given to, a designated communications provider; and

(b) the designated communications provider has nominated an address for service in a document given by the provider to:

(i) the Attorney‑General; or

(ii) the Communications Access Co‑ordinator; or

(iii) the Director‑General of Security; or

(iv) the chief officer of an interception agency;

the summons, process, or notice, as the case may be, is taken to have been served on, or given to, the provider if it is left at, or sent by pre‑paid post to, the nominated address for service.

(3) If:

(a) the summons, process or notice, as the case may be, is required to be served on, or given to, a designated communications provider; and

(b) the designated communications provider has nominated an electronic address for service in a document given by the provider to:

(i) the Attorney‑General; or

(ii) the Communications Access Co‑ordinator; or

(iii) the Director‑General of Security; or

(iv) the chief officer of an interception agency;

the summons, process or notice, as the case may be, is taken to have been served on, or given to, the provider if it is sent to the nominated electronic address for service.

Service of summons, process or notice on agent etc.

(4) If:

(a) the summons, process or notice, as the case may be, is required to be served on, or given to, a body corporate incorporated outside Australia; and

(b) the body corporate does not have a registered office or a principal office in Australia; and

the summons, process or notice, as the case may be, is taken to have been served on, or given to, the body corporate if it is served on, or given to, the agent.

(5) If:

(a) the summons, process or notice, as the case may be, is required to be served on, or given to, a body corporate incorporated outside Australia; and

(b) the body corporate does not have a registered office or a principal office in Australia; and

the summons, process or notice, as the case may be, is taken to have been served on, or given to, the body corporate if it is left at, or sent by pre‑paid post to, that address.

Other matters

(6) Subsections (2), (3), (4) and (5) have effect in addition to:

(a) section 28A of the Acts Interpretation Act 1901; and

(b) sections 587 and 588 of this Act.

Note: Section 28A of the Acts Interpretation Act 1901 deals with the service of documents.

317ZM Interception agency—chief officer and officer

For the purposes of this Part, the following table defines:

(a) chief officer of an interception agency; and

(b) officer of an interception agency.

Chief officer and officers of interception agencies
Item	Column 1	Column 2	Column 3
	Interception agency	Chief officer	Officer
1	Australian Federal Police	the Commissioner (within the meaning of the Australian Federal Police Act 1979)	a member or special member of the Australian Federal Police
3	Australian Crime Commission	Chief Executive Officer of the Australian Crime Commission	(a) the Chief Executive Officer of the Australian Crime Commission; or (b) an examiner (within the meaning of the Australian Crime Commission Act 2002); or (c) a member of the staff of the ACC (within the meaning of the Australian Crime Commission Act 2002)
3A	National Anti‑Corruption Commission	the National Anti‑Corruption Commissioner (within the meaning of the National Anti‑Corruption Commission Act 2022)	a staff member of the NACC (within the meaning of the National Anti‑Corruption Commission Act 2022)
4	Police Force of a State or the Northern Territory	the Commissioner of Police (however designated) of that State or Territory	an officer of that Police Force
5	Independent Commission Against Corruption of New South Wales	the Chief Commissioner (within the meaning of the Independent Commission Against Corruption Act 1988 (NSW))	an officer of the Commission (within the meaning of the Independent Commission Against Corruption Act 1988 (NSW)) (other than a person engaged under section 104B of that Act)
6	New South Wales Crime Commission	the Commissioner (within the meaning of the Crime Commission Act 2012 (NSW))	an officer of the Commission (within the meaning of the Crime Commission Act 2012 (NSW)) other than a person engaged under subsection 74(2) of that Act
7	Law Enforcement Conduct Commission of New South Wales	the Chief Commissioner (within the meaning of the Law Enforcement Conduct Commission Act 2016 (NSW))	(a) a Commissioner (within the meaning of the Law Enforcement Conduct Commission Act 2016 (NSW)); or (b) a member of staff of the Commission (within the meaning of the Law Enforcement Conduct Commission Act 2016 (NSW))
8	Independent Broad‑based Anti‑corruption Commission of Victoria	the Commissioner (within the meaning of the Independent Broad‑based Anti‑corruption Commission Act 2011 (Vic.))	a sworn IBAC Officer (within the meaning of the Independent Broad‑based Anti‑corruption Commission Act 2011 (Vic.))
9	Crime and Corruption Commission of Queensland	the chairperson (within the meaning of the Crime and Corruption Act 2001 (Qld))	a commission officer (as defined by paragraph (a) of the definition of commission officer in Schedule 2 to the Crime and Corruption Act 2001 (Qld)) other than a person engaged under section 256 of that Act
10	Independent Commission Against Corruption of South Australia	the Commissioner (within the meaning of the Independent Commission Against Corruption Act 2012 (SA))	(a) the Commissioner (within the meaning of the Independent Commission Against Corruption Act 2012 (SA)); or (b) the Deputy Commissioner (within the meaning of the Independent Commission Against Corruption Act 2012 (SA)); or (c) a member of the staff of the Independent Commission Against Corruption of South Australia
11	Corruption and Crime Commission of Western Australia	the Commissioner (within the meaning of the Corruption, Crime and Misconduct Act 2003 (WA))	an officer of the Commission (within the meaning of the Corruption, Crime and Misconduct Act 2003 (WA)) other than a person engaged under section 182 of that Act

317ZN Delegation by Director‑General of Security

(1) The Director‑General of Security may, by writing, delegate any or all of the functions or powers of the Director‑General of Security under Division 2, 3 or 6 to a senior position‑holder (within the meaning of the Australian Security Intelligence Organisation Act 1979).

(2) A delegate must comply with any written directions of the Director‑General of Security.

317ZP Delegation by Director‑General of the Australian Secret Intelligence Service

(1) The Director‑General of the Australian Secret Intelligence Service may, by writing, delegate any or all of the functions or powers of the Director‑General of the Australian Secret Intelligence Service under Division 2 or 6 to a person who:

(a) is a staff member of the Australian Secret Intelligence Service; and

(b) holds, or is acting in, a position in the Australian Secret Intelligence Service that is equivalent to, or higher than, a position occupied by an SES employee.

(2) A delegate must comply with any written directions of the Director‑General of the Australian Secret Intelligence Service.

317ZQ Delegation by Director‑General of the Australian Signals Directorate

(1) The Director‑General of the Australian Signals Directorate may, by writing, delegate any or all of the functions or powers of the Director‑General of the Australian Signals Directorate under Division 2 or 6 to a person:

(a) who is a staff member of the Australian Signals Directorate; and

(b) who:

(i) is an SES employee, or acting SES employee, in the Australian Signals Directorate; or

(ii) holds, or is acting in, a position in the Australian Signals Directorate that is equivalent to, or higher than, a position occupied by an SES employee.

(2) A delegate must comply with any written directions of the Director‑General of the Australian Signals Directorate.

317ZR Delegation by the chief officer of an interception agency

(1) The chief officer of an interception agency mentioned in an item of column 1 of the following table may, by writing, delegate any or all of the functions or powers of the chief officer under Division 2, 3 or 6 to a person mentioned in column 2 of the item.

Potential delegates
Item	Column 1	Column 2
	Interception agency	Potential delegates
1	Australian Federal Police	(a) a Deputy Commissioner (within the meaning of the Australian Federal Police Act 1979); or (b) a senior executive AFP employee (within the meaning of the Australian Federal Police Act 1979)
3	Australian Crime Commission	a member of the staff of the ACC (within the meaning of the Australian Crime Commission Act 2002) who is an SES employee or acting SES employee
3A	National Anti‑Corruption Commission	a staff member of the NACC (within the meaning of the National Anti‑Corruption Commission Act 2022) who is a Deputy Commissioner, SES employee or acting SES employee
4	Police Force of a State or the Northern Territory	(a) an Assistant Commissioner of the Police Force or a person holding equivalent rank; or (b) a Superintendent of the Police Force or a person holding equivalent rank
5	Independent Commission Against Corruption of New South Wales	(a) a Commissioner (within the meaning of the Independent Commission Against Corruption Act 1988 (NSW)); or (b) an Assistant Commissioner (within the meaning of the Independent Commission Against Corruption Act 1988 (NSW)); or (c) an officer of the Commission (within the meaning of the Independent Commission Against Corruption Act 1988 (NSW)) (other than a person engaged under section 104B of that Act) who is at executive level
6	New South Wales Crime Commission	an officer of the Commission (within the meaning of the Crime Commission Act 2012 (NSW)) (other than a person engaged under subsection 74(2) of that Act) who is at executive level
7	Law Enforcement Conduct Commission of New South Wales	(a) a Commissioner (within the meaning of the Law Enforcement Conduct Commission Act 2016 (NSW)); or (b) a member of staff of the Commission (within the meaning of the Law Enforcement Conduct Commission Act 2016 (NSW)) who is at executive level
8	Independent Broad‑based Anti‑corruption Commission of Victoria	(a) a Deputy Commissioner of the Commission (within the meaning of the Independent Broad‑based Anti‑corruption Commission Act 2011 (Vic.)); or (b) the Chief Executive Officer (within the meaning of the Independent Broad‑based Anti‑corruption Commission Act 2011 (Vic.)); or (c) a sworn IBAC Officer (within the meaning of the Independent Broad‑based Anti‑corruption Commission Act 2011 (Vic.)) who is at executive level
9	Crime and Corruption Commission of Queensland	a senior executive officer (within the meaning of the Crime and Corruption Act 2001 (Qld))
10	Independent Commission Against Corruption of South Australia	(a) the Deputy Commissioner (within the meaning of the Independent Commission Against Corruption Act 2012 (SA)); or (b) a member of the staff of the Independent Commission Against Corruption of South Australia who is at executive level
11	Corruption and Crime Commission of Western Australia	an officer of the Commission (within the meaning of the Corruption, Crime and Misconduct Act 2003 (WA)) (other than a person engaged under section 182 of that Act) who is at executive level

(2) A delegate must comply with any written directions of the chief officer.

Executive level

(3) For the purposes of this section, a person is at executive level, in relation to an interception agency of New South Wales, if the person occupies an office or position at an equivalent level to that of a Public Service senior executive (within the meaning of the Government Sector Employment Act 2013 (NSW)).

(4) For the purposes of this section, a person is at executive level, in relation to an interception agency of Victoria, if the person occupies an office or position at an equivalent level to that of an executive (within the meaning of the Public Administration Act 2004 (Vic.)).

(5) For the purposes of this section, a person is at executive level, in relation to an interception agency of South Australia, if the person occupies an office or position at an equivalent level to that of an executive employee (within the meaning of the Public Sector Act 2009 (SA)).

(6) For the purposes of this section, a person is at executive level, in relation to an interception agency of Western Australia, if the person occupies an office or position at an equivalent level to that of a senior executive officer (within the meaning of the Public Sector Management Act 1994 (WA)).

317ZRA Relationship of this Part to parliamentary privileges and immunities

To avoid doubt, this Part does not affect the law relating to the powers, privileges and immunities of any of the following:

(a) each House of the Parliament;

(b) the members of each House of the Parliament;

317ZRB Inspection of records

(1) An Ombudsman official may inspect the records of an interception agency to determine the extent of compliance with this Part by:

(a) the agency; and

(b) the chief officer of the agency; and

(2) The chief officer of an interception agency must ensure that officers of the agency give an Ombudsman official any assistance the Ombudsman official reasonably requires to enable the Ombudsman official to exercise the power conferred by subsection (1).

Report

(3) The Commonwealth Ombudsman may make a written report to the Home Affairs Minister on the results of one or more inspections under subsection (1).

(4) A report under subsection (3) must not include information which, if made public, could reasonably be expected to:

(a) prejudice an investigation or prosecution; or

(b) compromise any interception agency’s operational activities or methodologies.

(5) If:

(a) the Commonwealth Ombudsman makes a report under subsection (3); and

(b) the report relates to an inspection under subsection (1) of the records of an interception agency of a State or Territory;

the Commonwealth Ombudsman must give a copy of the report to the chief officer of the interception agency.

(6) If the Home Affairs Minister receives a report under subsection (3), the Home Affairs Minister must cause a copy of the report to be tabled in each House of the Parliament within 15 sitting days of that House after the Home Affairs Minister receives the report.

(7) Before tabling the copy of the report, the Home Affairs Minister may delete from the copy information that, if made public, could reasonably be expected to:

(a) prejudice an investigation or prosecution; or

(b) compromise any interception agency’s operational activities or methodologies.

317ZS Annual reports

(1) The Home Affairs Minister must, as soon as practicable after each 30 June, cause to be prepared a written report that sets out:

(a) the number of technical assistance requests that were given during the year ending on that 30 June by the chief officers of interception agencies; and

(b) the number of technical assistance notices that were given during the year ending on that 30 June by the chief officers of interception agencies; and

(i) given during the year ending on that 30 June; and

(ii) directed towards ensuring that designated communications providers are capable of giving help to interception agencies; and

(d) if any technical assistance requests, technical assistance notices or technical capability notices given during the year ending on that 30 June related to the enforcement of the criminal law so far as it relates to one or more kinds of serious Australian offences—those kinds of serious Australian offences.

(2) A report under subsection (1) must be included in the report prepared under subsection 186(2) of the Telecommunications (Interception and Access) Act 1979 relating to the year ending on that 30 June.

317ZT Alternative constitutional basis

(1) Without limiting its effect apart from this section, this Part also has effect as provided by this section.

(2) This Part also has the effect it would have if each reference in this Part to a designated communications provider were, by express provision, confined to a designated communications provider that is a constitutional corporation.

Part 16—Defence requirements and disaster plans

Division 1—Introduction

333 Simplified outline

The following is a simplified outline of this Part:

• A carriage service provider may be required to supply a carriage service for defence purposes or for the management of natural disasters.

• A carrier or carriage service provider may be required to enter into an agreement with the Commonwealth about:

(a) planning for network survivability; or

(b) operational requirements in times of crisis.

• A carrier licence condition or a service provider rule may deal with compliance with a disaster plan.

334 Defence authority

For the purposes of this Part, a defence authority is:

(a) the Secretary of the Defence Department; or

(b) the Chief of the Defence Force.

Division 2—Supply of carriage services

335 Requirement to supply carriage services for defence purposes or for the management of natural disasters

(1) A defence authority may give a carriage service provider a written notice requiring the provider to supply a specified carriage service for the use of:

(a) the Defence Department; or

(b) the Defence Force.

(2) A defence authority must not issue a notice about a carriage service unless the service is required for:

(a) defence purposes; or

(b) for the purposes of the management of natural disasters;

or both.

(3) A notice issued by a defence authority requiring a carriage service provider to supply a carriage service in particular circumstances is of no effect if there is in force a written certificate issued by the ACMA stating that, in the ACMA’s opinion, it would be unreasonable for the provider to be required to supply the service in those circumstances.

(4) If a requirement is in force, the provider must supply the carriage service in accordance with the requirement and on such terms and conditions as are:

(a) agreed between the provider and the defence authority; or

(b) failing agreement, determined by an arbitrator appointed by the parties.

If the parties cannot agree on the appointment of an arbitrator, the ACCC is to be the arbitrator.

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

(6) The regulations may provide that, for the purposes of a particular arbitration conducted by the ACCC under this section, the ACCC may be constituted by a single member, or a specified number of members, of the ACCC. For each such arbitration, that member or those members are to be nominated in writing by the Chairperson of the ACCC.

(7) Subsection (6) does not, by implication, limit subsection (5).

Division 3—Defence planning

336 Definitions

In this Division:

certified agreement has the meaning given by section 338.

crisis means:

(a) war, war‑like conflict or war‑like operations; or

(b) civil disturbance; or

(d) earthquakes, floods, fire, cyclones, storms or other disasters (whether natural or resulting from the acts or omissions of humans).

draft agreement means a draft agreement prepared under section 337.

network survivability means the ability of a telecommunications network, or of a facility, to continue to function in times of crisis.

337 Preparation of draft agreement

(1) A defence authority may prepare a draft agreement to be entered into by the defence authority (on behalf of the Commonwealth) and:

(a) a carrier; or

(b) a carriage service provider.

(2) The agreement must be about:

(a) planning for network survivability; or

(b) operational requirements in times of crisis;

or both.

(3) In preparing the draft agreement, the defence authority must consult the carrier or provider concerned.

338 ACMA’s certification of draft agreement

(1) The ACMA may certify a draft agreement if the ACMA is of the opinion that the draft agreement is reasonable.

(2) On being certified, the draft agreement becomes a certified agreement.

(3) In deciding whether to certify a draft agreement, the ACMA must have regard to whether the draft agreement deals with the following matters in a reasonable way:

(a) consultation with a defence authority about maintenance, installation, modification and removal of telecommunications networks or facilities;

(b) consultation with a defence authority about operational arrangements in times of crisis;

(d) grants of financial assistance (including conditional grants) by the Commonwealth for purposes relating to:

(i) network survivability; or

(ii) operational requirements in times of crisis;

or both.

(4) For the purposes of this section, in determining whether a particular matter is reasonable, the ACMA must have regard to:

(a) the needs of the Defence Department and of the Defence Force; and

(b) the interests of the carrier or carriage service provider concerned.

This subsection does not, by implication, limit the meaning of the expression “reasonable”.

(5) In deciding whether to certify a draft agreement, the ACMA must consult the parties to the agreement.

(6) As soon as practicable after deciding whether to certify a draft agreement, the ACMA must give each of the parties to the agreement a written notice setting out its decision.

339 Requirement to enter into certified agreement

(1) This section applies if the ACMA has certified a draft agreement relating to a carrier or carriage service provider.

(2) A defence authority may give:

(a) the carrier; or

(b) the carriage service provider;

as the case requires, a written notice requiring the carrier or provider to enter into the agreement within 30 days after receiving the notice.

(3) The carrier or provider must comply with the notice.

340 Compliance with agreement

If:

(a) a carrier; or

(b) a carriage service provider;

has entered into a certified agreement, the carrier or provider, as the case requires, must comply with the agreement, so long as the agreement remains in force.

341 Withdrawal of certification of agreement

(1) This section applies if:

(a) a certified agreement is in force at a particular time; and

(b) the ACMA is of the opinion that, if the agreement were a draft agreement at that time, the ACMA would have refused to certify it.

(2) The ACMA must withdraw its certification of the agreement.

(3) As soon as practicable after withdrawing its certification of the agreement, the ACMA must give each of the parties to the agreement a written notice stating that it has withdrawn its certification of the agreement.

342 Duration of agreement

(1) If a certified agreement has been entered into, it remains in force until it is revoked under this section.

(2) A certified agreement is revoked if the parties enter into a fresh certified agreement that is expressed to replace the original agreement.

(3) If the ACMA withdraws its certification of a certified agreement, the agreement is revoked 60 days after the withdrawal.

343 Variation of agreement

(1) This section applies if a certified agreement is in force.

(2) A defence authority may prepare a draft variation of the agreement.

(3) In preparing the draft variation, the defence authority must consult the carrier or carriage service provider concerned.

(4) If:

(a) a defence authority has prepared a draft variation of a certified agreement; and

(b) the ACMA is of the opinion that, if the agreement, as proposed to be varied, were a draft agreement, the ACMA would certify the agreement;

the ACMA must certify the variation.

(5) Before forming an opinion referred to in paragraph (4)(b) about an agreement, the ACMA must consult the parties to the agreement.

(6) After deciding whether to certify a draft variation of a certified agreement, the ACMA must give each of the parties to the agreement a written notice setting out its decision.

(7) If the ACMA certifies a draft variation of a certified agreement, the agreement is varied accordingly.

Division 4—Disaster plans

344 Designated disaster plans

For the purposes of this Division, a designated disaster plan is a plan that:

(a) is for coping with disasters and/or civil emergencies; and

(b) is prepared by the Commonwealth, a State or a Territory.

345 Carrier licence conditions about designated disaster plans

(1) An instrument under section 63 imposing conditions on a carrier licence held by a carrier may make provision for and in relation to compliance by the carrier with one or more specified designated disaster plans.

(2) Subsection (1) does not, by implication, limit section 63.

346 Service provider determinations about designated disaster plans

(1) Service provider determinations under section 99 may make provision for and in relation to compliance by one or more specified carriage service providers with one or more specified designated disaster plans.

(2) Subsection (1) does not, by implication, limit section 99.

346A Carrier and carriage service provider immunity

(1) A carrier or carriage service provider is not liable to an action or other proceeding for damages for or in relation to an act done or omitted in good faith in compliance with a designated disaster plan covered by subsection 345(1) or 346(1), as the case may be.

(2) An officer, employee or agent of a carrier or of a carriage service provider is not liable to an action or other proceeding for damages for or in relation to an act done or omitted in good faith in connection with an act done or omitted by the carrier or provider as mentioned in subsection (1).

Division 5—Delegation

347 Delegation

(1) The Secretary of the Defence Department may, by writing, delegate to an SES employee or acting SES employee in that Department any or all of the Secretary’s powers under this Part.

(2) The Chief of the Defence Force may, by writing, delegate to a member of the Defence Force holding a senior rank any or all of the powers conferred on the Chief of the Defence Force by this Part.

(3) In this section:

senior rank means a rank not lower than:

(a) in the case of the Royal Australian Navy—the rank of Commodore; or

(b) in the case of the Australian Army—the rank of Brigadier; or

Part 17—Pre‑selection in favour of carriage service providers

348 Simplified outline

The following is a simplified outline of this Part:

• The ACMA may require certain carriers and carriage service providers to provide pre‑selection in favour of carriage service providers in relation to calls made using a standard telephone service.

• The ACMA must require certain carriers and carriage service providers to provide pre‑selection in favour of carriage service providers in relation to calls made using a declared carriage service.

• Pre‑selection must include over‑ride dial codes for selecting alternative carriage service providers on a call‑by‑call basis.

349 Requirement to provide pre‑selection

(1) The ACMA may make a written determination requiring each carrier or carriage service provider who supplies an eligible standard telephone service to:

(a) provide pre‑selection in favour of a specified carriage service provider, in relation to calls made using an eligible standard telephone service, in the manner specified in the determination; and

(b) comply with such ancillary or incidental rules (if any) as are set out in the determination.

(2) The ACMA must make a written determination requiring each carrier or carriage service provider who supplies a specified declared carriage service to:

(a) provide pre‑selection in favour of a specified carriage service provider, in relation to calls made using the carriage service, in the manner specified in the determination; and

(b) comply with such ancillary or incidental rules (if any) as are set out in the determination.

Note: Declared carriage service is defined by section 350A.

(3) In making a determination under subsection (1) or (2), the ACMA must have regard to:

(a) the technical feasibility of complying with the requirement concerned; and

(b) the costs and benefits of complying with the requirement concerned.

(4) Subsection (3) does not, by implication, limit the matters to which regard may be had.

(5) A reference in this section to a standard telephone service does not include a reference to a service that is supplied by means of a public mobile telecommunications service.

(5A) A reference in this section to a standard telephone service does not include a reference to a service that:

(a) is supplied using:

(i) a designated radiocommunications facility owned or operated by a carrier or carriage service provider; and

(ii) a line that runs directly between the facility and the premises occupied or used by an end‑user; and

(b) if an instrument is in force under subsection (5B)—satisfies the conditions set out in the instrument.

(5B) The Minister may, by legislative instrument, set out conditions for the purposes of paragraph (5A)(b).

(6) Before making a determination under this section, the ACMA must consult the ACCC.

(7) In making a determination under this section, the ACMA may apply, adopt or incorporate (with or without modification) any matter contained in a code or standard proposed or approved by a body or association, either:

(a) as in force or existing at a particular time; or

(b) as in force or existing from time to time.

This subsection does not, by implication, limit section 589.

(8) A determination under this section is a legislative instrument.

(9) The ACMA must take all reasonable steps to ensure that a determination is in force under subsection (1) at all times before the start of the designated day (within the meaning of section 577A).

Eligible standard telephone service

(10) For the purposes of this section, eligible standard telephone service means a standard telephone service that is supplied using a local access line (other than an exempt line) to premises occupied or used by an end‑user, where:

(a) the local access line forms part of the infrastructure of:

(i) a public switched telephone network (other than a designated network) that was in existence immediately before the commencement of this subsection (even if it is subsequently extended); or

(ii) an integrated services digital network (other than a designated network) that was in existence immediately before the commencement of this subsection (even if it is subsequently extended); or

(iii) a telecommunications network specified in an instrument in force under subsection (11); or

(b) the following conditions are satisfied:

(i) the service is a public switched telephone service supplied by a carriage service provider;

(ii) the local access line is part of the infrastructure of a designated network (other than a hybrid fibre‑coaxial network);

(iii) the carriage service provider is in a position to exercise control over the designated network;

(iv) such other conditions (if any) as are set out in an instrument in force under subsection (11A); or

(i) the service is an integrated services digital service supplied by a carriage service provider;

(ii) the local access line is part of the infrastructure of a designated network (other than a hybrid fibre‑coaxial network);

(iii) the carriage service provider is in a position to exercise control over the designated network;

(iv) such other conditions (if any) as are set out in an instrument in force under subsection (11B); or

(d) the following conditions are satisfied:

(i) the service is a PSTN pass‑through service supplied in conjunction with a telecommunications network covered by paragraph (b) of the definition of optical fibre network in subsection (16);

(ii) such other conditions (if any) as are set out in an instrument in force under subsection (11C).

(11) The Minister may, by legislative instrument, specify a telecommunications network for the purposes of subparagraph (10)(a)(iii).

(11A) The Minister may, by legislative instrument, set out one or more conditions for the purposes of subparagraph (10)(b)(iv).

(11B) The Minister may, by legislative instrument, set out one or more conditions for the purposes of subparagraph (10)(c)(iv).

(11C) The Minister may, by legislative instrument, set out one or more conditions for the purposes of subparagraph (10)(d)(ii).

Exempt line

(12) For the purposes of this section, exempt line means a line specified in an instrument in force under subsection (13).

(13) The Minister may, by legislative instrument, specify a line for the purposes of subsection (12).

Designated network

(14) For the purposes of this section, designated network means:

(a) an optical fibre network; or

(b) a hybrid fibre‑coaxial network; or

(15) The Minister may, by legislative instrument, specify a telecommunications network for the purposes of paragraph (14)(c).

(15A) For the purposes of this section:

(a) the question of whether a carriage service provider is in a position to exercise control over a designated network is to be determined under Division 7 of Part 33; and

(b) in determining that question for a carriage service provider other than Telstra, that Division applies in relation to the carriage service provider in a corresponding way to the way in which that Division applies in relation to Telstra.

Review of determination

(15B) The ACMA must:

(a) conduct a review of whether a determination in force under subsection (1) of this section should be varied or revoked; and

(b) do so at least 2 months before the start of the designated day (within the meaning of section 577A).

Definitions

(16) In this section:

integrated services digital network has the meaning generally accepted within the telecommunications industry immediately before the commencement of this subsection.

integrated services digital service has the meaning generally accepted within the telecommunications industry immediately before the commencement of this subsection.

local access line has the meaning given by section 349A.

non‑optical‑fibre cable means a line other than an optical fibre line.

optical fibre network means:

(a) a telecommunications network the line component of which consists of optical fibre lines; or

(b) a telecommunications network the line component of which consists of optical fibre lines to connecting nodes, supplemented by either or both of the following:

(i) non‑optical‑fibre cable connections from the nodes to premises occupied or used by end‑users;

(ii) non‑optical‑fibre cable connections from the nodes to main distribution frames, and non‑optical‑fibre cable connections from main distribution frames to premises occupied or used by end‑users.

PSTN pass‑through service has the meaning generally accepted within the telecommunications industry immediately before the commencement of this subsection.

public switched telephone network has the meaning generally accepted within the telecommunications industry immediately before the commencement of this subsection.

public switched telephone service has the meaning generally accepted within the telecommunications industry immediately before the commencement of this subsection.

349A Local access line

(1) For the purposes of this Part, a local access line is a line that is part of the infrastructure of a local access network.

(2) However, a line does not form part of a local access line to the extent that the line is on the customer side of the boundary of a telecommunications network.

(3) For the purposes of this section, the boundary of a telecommunications network is to be determined in the same manner in which it is determined under section 22 for the purposes of sections 20, 21 and 30.

(4) For the purposes of this section, local access network has the meaning generally accepted within the telecommunications industry.

350 When pre‑selection is provided in favour of a carriage service provider

(1) For the purposes of this Part, a determination requires a carrier to provide pre‑selection in favour of a carriage service provider in relation to calls made using a particular carriage service if, and only if, the determination requires:

(a) the controlled networks and controlled facilities of the carrier to permit an end‑user to:

(i) pre‑select the carriage service provider as the end‑user’s preferred carriage service provider for such of the end‑user’s requirements, in relation to calls made using that carriage service, as are specified in the determination; and

(ii) change that selection from time to time; and

(c) the controlled networks and controlled facilities of the carrier to provide over‑ride dial codes for selecting alternative carriage service providers, in relation to calls made using that carriage service, on a call‑by‑call basis.

Note: End‑user is defined by subsection (3).

(2) For the purposes of this Part, a determination requires a carriage service provider (the first provider) to provide pre‑selection in favour of another carriage service provider (the second provider) in relation to calls made using a particular carriage service if, and only if, the determination requires:

(a) the controlled networks and controlled facilities of the first provider to permit an end‑user to:

(i) pre‑select the second provider as the end‑user’s preferred carriage service provider for such of the end‑user’s requirements, in relation to calls made using that carriage service, as are specified in the determination; and

(ii) change that selection from time to time; and

(c) the controlled networks and controlled facilities of the first provider to provide over‑ride dial codes for selecting alternative carriage service providers, in relation to calls made using that carriage service, on a call‑by‑call basis.

Note: End‑user is defined by subsection (3).

(3) For the purposes of this section, an end‑user, in relation to a controlled network or a controlled facility, is an end‑user of a carriage service that involves the use of the network or facility.

(4) Each of the following is an example of an end‑user’s requirements:

(a) the end‑user’s requirements relating to domestic long‑distance calls;

(b) the end‑user’s requirements relating to international calls.

350A Declared carriage services

(1) The ACCC may, by written instrument, declare that a specified carriage service is a declared carriage service for the purposes of this Part.

(2) The declaration has effect accordingly.

(3) In deciding whether to make a declaration under this section, the ACCC must have regard to whether the declaration will promote the long‑term interests of end‑users of:

(a) carriage services; or

(b) services supplied by means of carriage services.

(4) The ACCC may have regard to any other matters that it thinks are relevant.

(5) For the purposes of this section, the question whether a particular thing promotes the long‑term interests of end‑users of:

(a) carriage services; or

(b) services supplied by means of carriage services;

is to be determined in the same manner in which that question is determined for the purposes of Part XIC of the Competition and Consumer Act 2010.

Note: See section 152AB of the Competition and Consumer Act 2010.

351 Pre‑selection to be provided

(1) This section applies to a person if a determination under section 349 is in force and that determination requires the person to provide pre‑selection.

(2) A person must provide pre‑selection in accordance with the requirements set out in the determination and on such terms and conditions as are:

(a) agreed between the following parties:

(i) the person;

(ii) the carriage service provider in whose favour pre‑selection is required to be provided; or

(b) failing agreement, determined by an arbitrator appointed by the parties.

If the parties fail to agree on the appointment of an arbitrator, the ACCC is to be the arbitrator.

(3) The regulations may make provision for and in relation to the conduct of an arbitration under this section.

(4) The regulations may provide that, for the purposes of a particular arbitration conducted by the ACCC under this section, the ACCC may be constituted by a single member, or a specified number of members, of the ACCC. For each such arbitration, that member or those members are to be nominated in writing by the Chairperson of the ACCC.

(5) Subsection (4) does not, by implication, limit subsection (3).

(6) A person must comply with any rules set out in the determination as mentioned in paragraph 349(1)(b) or (2)(b).

352 Exemptions from requirement to provide pre‑selection

(1) The ACMA may, by writing, declare that a specified carrier or carriage service provider is exempt from a requirement imposed under section 349. The declaration has effect accordingly.

Note: Carriers or providers may be specified by name, by inclusion in a particular class or in any other way.

(2) In deciding whether a carrier or carriage service provider should be exempt from a requirement imposed under section 349, the ACMA must have regard to the following matters:

(a) whether it would be technically feasible for the carrier or provider to comply with the requirement concerned;

(b) whether compliance with the requirement concerned would impose unreasonable financial hardship on the carrier or provider.

(3) Subsection (2) does not, by implication, limit the matters to which the ACMA may have regard.

(4) Before making a declaration under this section, the ACMA must consult the ACCC.

(5) The ACMA must publish a copy of a declaration under this section on the ACMA’s website.

(6) A declaration under this section is not a legislative instrument if:

(a) the declaration specifies a carrier by name; or

(b) the declaration specifies a carriage service provider by name.

(7) A declaration under this section is a legislative instrument if:

(a) the declaration specifies a class of carriers; or

(b) the declaration specifies a class of carriage service providers.

353 Use of over‑ride dial codes

(1) This section applies to a carriage service provider (the first provider) if:

(a) the first provider supplies a carriage service that involves the use of a controlled network, or a controlled facility, of a carrier, of the first provider or of another carriage service provider; and

(b) in accordance with a determination under section 349, the network or facility, as the case may be, provides over‑ride dial codes for selecting alternative carriage service providers on a call‑by‑call basis.

(2) Unless, in the ACMA’s opinion:

(a) it would not be technically feasible; or

(b) it would impose unreasonable financial hardship on the first provider;

the first provider must take such steps as are necessary to ensure that each end‑user of the carriage service is able to make use of those codes for selecting alternative carriage service providers on a call‑by‑call basis.

(3) The requirement in subsection (2) does not, by implication, prevent an alternative carriage service provider from refusing to supply a carriage service to the end‑user concerned.

Part 18—Calling line identification

354 Simplified outline

The following is a simplified outline of this Part:

• Certain switching systems must be capable of providing calling line identification.

355 Calling line identification

(1) This section applies to a person if:

(a) the person is a carrier or a carriage service provider; and

(b) a controlled facility of the person consists of:

(i) a switching system used in connection with the supply of a standard telephone service; or

(ii) a switching system of a kind specified in a determination under subsection (3); and

(i) the completion of the installation of the system occurred on or after 1 July 1997; or

(ii) immediately before 1 July 1997, the system was capable of providing calling line identification.

(2) The person must take all reasonable steps to ensure that the system is capable of providing calling line identification.

(3) The ACMA may, by legislative instrument, make a determination for the purposes of subparagraph (1)(b)(ii).

356 Exemptions from calling line identification requirement

(1) The ACMA may, by notice in the Gazette, declare that a specified person is exempt from the requirement set out in section 355. The declaration has effect accordingly.

Note: A person may be identified by name, by inclusion in a particular class or in any other way.

(2) In deciding whether a person should be exempt from the requirement set out in section 355, the ACMA must have regard to the following matters:

(a) whether it would be unreasonable to impose the requirement;

(b) whether it is in the public interest to impose the requirement.

(3) Subsection (2) does not, by implication, limit the matters to which the ACMA may have regard.

Part 19—Statutory infrastructure providers

Division 1—Introduction

360 Simplified outline of this Part

• The statutory infrastructure provider for a service area must, on reasonable request by a carriage service provider on behalf of an end‑user at premises in the service area, connect the premises to a qualifying telecommunications network in order that the carriage service provider can provide qualifying carriage services to the end‑user at the premises.

• A statutory infrastructure provider must comply with standards, benchmarks and rules determined by the Minister.

• A statutory infrastructure provider must publish the terms and conditions on which it offers to:

(a) connect premises; or

(b) supply related eligible services to carriage service providers.

360A Definitions

In this Part:

access agreement has the same meaning as in Part XIC of the Competition and Consumer Act 2010.

building redevelopment project has the meaning given by section 360Y.

designated day means the day on which a declaration is made under paragraph 48(1)(c) or (2)(a) of the National Broadband Network Companies Act 2011.

Note: The declaration will state that, in the Minister’s opinion, the national broadband network should be treated as built and fully operational.

designated service area has the meaning given by section 360L.

eligible service has the same meaning as in section 152AL of the Competition and Consumer Act 2010.

GDA94 means Geocentric Datum of Australia 1994.

general service area has the meaning given by section 360F.

interim NBN service area has the meaning given by section 360D.

NBN Co has the same meaning as in the National Broadband Network Companies Act 2011.

nominated service area has the meaning given by section 360H or 360J.

project area, for a building redevelopment project, has the meaning given by section 360Y.

provisional interim NBN service area has the meaning given by section 360D.

provisional nominated service area has the meaning given by section 360H.

qualifying carriage service means:

(a) a qualifying fixed‑line carriage service; or

(b) a qualifying fixed wireless carriage service; or

qualifying fixed‑line carriage service means a carriage service, where:

(a) the carriage service enables end‑users to download communications; and

(b) the carriage service is supplied using a line to premises occupied or used by an end‑user; and

(d) the peak upload transmission speed of the carriage service is at least 5 megabits per second.

qualifying fixed‑line telecommunications network means a telecommunications network that is used to supply a qualifying fixed‑line carriage service to customers in Australia.

qualifying fixed wireless carriage service has the meaning given by section 360AA.

qualifying satellite carriage service means a carriage service, where:

(a) the carriage service enables end‑users to download communications; and

(b) the carriage service is supplied using a satellite; and

(d) the peak upload transmission speed of the carriage service is at least 5 megabits per second;

but does not include a public mobile telecommunications service.

qualifying telecommunications network means a telecommunications network that is used, or proposed to be used, to supply a qualifying carriage service to customers, or prospective customers, in Australia.

relevant service area, in relation to a statutory infrastructure provider, means a service area for which the provider is the statutory infrastructure provider.

request includes a notional request by a corporation (in its capacity as a carriage service provider) to itself (in its capacity as a carrier).

service area has the meaning given by section 360C.

statutory infrastructure provider:

(a) for an interim NBN service area—has the meaning given by section 360E; or

(b) for the general service area—has the meaning given by section 360G; or

(d) for a designated service area—has the meaning given by section 360L.

TAB vector format means the MapInfo proprietary format that contains a spatial representation of data using points, lines, and polygons.

360AA Qualifying fixed wireless carriage service

(1) For the purposes of this Part, qualifying fixed wireless carriage service means a carriage service, where:

(a) the carriage service is supplied using a fixed wireless technology platform; and

(b) the carriage service is marketed to customers, or potential customers, as a fixed wireless service; and

(d) the peak download transmission speed of the carriage service is at least 25 megabits per second; and

(e) the peak upload transmission speed of the carriage service is at least 5 megabits per second; and

(f) the carriage service is not a public mobile telecommunications service; and

(g) the carriage service is a listed carriage service; and

(h) the conditions (if any) determined under subsection (2) are satisfied.

(2) The Minister may, by legislative instrument, determine one or more conditions for the purposes of paragraph (1)(h).

(3) For the purposes of this section, fixed wireless technology platform has the meaning generally accepted within the telecommunications industry.

Division 2—Service areas and statutory infrastructure providers

Subdivision AA—Introduction

360B Simplified outline of this Division

• There are 4 types of service area, as follows:

(a) an interim NBN service area;

(b) the general service area;

(d) a designated service area.

• Interim NBN service areas exist only before the designated day.

• The general service area exists only after the start of the designated day.

• An NBN corporation will be the statutory infrastructure provider for an interim NBN service area.

• NBN Co will be the statutory infrastructure provider for the general service area.

• A nominated service area is an area that is attributable to:

(a) a declaration made by a carrier; or

(b) certain carrier licence conditions declarations made by the Minister.

• The statutory infrastructure provider for a nominated service area that is attributable to a declaration made by a carrier will be:

(a) the carrier; or

(b) another carrier declared by the Minister.

• The statutory infrastructure provider for a nominated service area that is attributable to a carrier licence conditions declaration will be:

(a) the carrier to whom the carrier licence conditions declaration applies; or

(b) another carrier declared by the Minister.

• A designated service area is an area declared by the Minister.

• The statutory infrastructure provider for a designated service area will be a carrier declared by the Minister.

• Nominated service areas and designated service areas are excluded from interim NBN service areas and the general service area.

• Designated service areas are excluded from nominated service areas.

360C Definition of service area

For the purposes of this Part, service area means:

(a) before the designated day:

(i) an interim NBN service area; or

(ii) a nominated service area; or

(iii) a designated service area; or

(b) after the start of the designated day:

(i) the general service area; or

(ii) a nominated service area; or

(iii) a designated service area.

Subdivision A—Rules applicable before the designated day

360D Interim NBN service area

(1) For the purposes of the application of this Part before the designated day, an interim NBN service area is so much of a provisional interim NBN service area as is not:

(a) the whole or a part of a nominated service area; or

(b) the whole or a part of a designated service area.

Provisional interim NBN service area

(2) If, during the period:

(a) beginning at the commencement of this section; and

(b) ending immediately before the designated day;

there begins to be published on NBN Co’s website a statement to the effect that a particular area in Australia is ready for service, NBN Co must:

(c) by written instrument, declare that the area is a provisional interim NBN service area for the purposes of the application of this Part before the designated day; and

(d) do so within 10 business days after the end of the month in which the statement began to be published.

Note: For the format of the description of the area, see section 360LA.

(3) If, before the commencement of this section, there was published on NBN Co’s website a statement to the effect that a particular area in Australia is ready for service, NBN Co must:

(a) by written instrument, declare that the area is a provisional interim NBN service area for the purposes of the application of this Part before the designated day; and

(b) do so within 10 business days after the commencement of this section.

Note: For the format of the description of the area, see section 360LA.

Publication etc.

(4) NBN Co must publish a copy of a declaration made by it under subsection (2) or (3) on its website.

(5) NBN Co must give a copy of a declaration made by it under subsection (2) or (3) to the ACMA.

Revocation

(6) A declaration made under subsection (2) or (3) cannot be revoked.

Variation

(7) A declaration made under subsection (2) or (3) cannot be varied except under subsection (8) or (9).

(8) A declaration made under subsection (2) or (3) cannot be varied by NBN Co except to correct a clerical error or obvious mistake.

(9) The Minister may, by writing, vary a declaration made under subsection (2) or (3).

(10) The Minister must give a copy of a variation under subsection (9) to the ACMA.

(11) Before making a decision under subsection (9) to vary a declaration, the Minister must:

(a) cause to be published on the Department’s website a notice:

(i) setting out the draft variation; and

(ii) inviting persons to make submissions to the Minister about the draft variation within the time limit specified in the notice; and

(b) consider any submissions received within the time limit specified in the notice.

(12) The time limit must not be shorter than 10 business days after the notice is published.

Rules

(13) In making a declaration under subsection (2) or (3), NBN Co must comply with any rules under subsection (14).

(14) The Minister may, by legislative instrument, make rules for the purposes of subsection (13).

Declaration and variation are not legislative instruments

(15) A declaration made under subsection (2) or (3) is not a legislative instrument.

(16) A variation under subsection (8) or (9) is not a legislative instrument.

360E Statutory infrastructure provider for an interim NBN service area

For the purposes of the application of this Part before the designated day, if:

(a) an area is a provisional interim NBN service area because of a section 360D declaration made by NBN Co; and

(b) the whole or a part of the provisional interim NBN service area is an interim NBN service area;

NBN Co is the statutory infrastructure provider for the interim NBN service area.

Subdivision B—Rules applicable after the start of the designated day

360F General service area

For the purposes of the application of this Part after the start of the designated day, the general service area means Australia, other than:

(a) a nominated service area; or

(b) a designated service area.

360G Statutory infrastructure provider for the general service area

For the purposes of the application of this Part after the start of the designated day, NBN Co is the statutory infrastructure provider for the general service area.

Subdivision C—Rules applicable before, at and after the start of the designated day

360H Nominated service area—declaration made by a carrier

(1) For the purposes of this Part, if a provisional nominated service area is attributable to a declaration under this section, so much of the provisional nominated service area as is not:

(a) the whole or a part of a provisional nominated service area that is attributable to a subsequent declaration under this section; or

(b) the whole or a part of a designated service area;

is a nominated service area.

Provisional nominated service area—real estate development project

(2) If:

(a) after the commencement of this section, a carrier (other than an NBN corporation) installs telecommunications network infrastructure that will enable the supply of eligible services to premises in the whole of the project area of a real estate development project; and

(b) the installation was carried out under a contract; and

the carrier must:

(d) by written instrument, declare that the whole of the project area is a provisional nominated service area for the purposes of this Part; and

(e) do so within 10 business days after completing the installation of that infrastructure.

Note: For the format of the description of the area, see section 360LA.

(3) The Minister may, by legislative instrument, specify conditions for the purposes of paragraph (2)(c).

(3A) The Minister may, by legislative instrument, exempt a specified real estate development project from subsection (2).

(3B) Subsection (2) does not apply if the supply of the eligible services mentioned in paragraph (2)(a) is, or will be, in the circumstances specified in a determination under subsection 360Q(4).

Provisional nominated service area—building redevelopment project

(4) If:

(b) the installation was carried out under a contract; and

the carrier must:

(d) by written instrument, declare that the whole of the project area is a provisional nominated service area for the purposes of this Part; and

(e) do so within 10 business days after completing the installation of that infrastructure.

Note: For the format of the description of the area, see section 360LA.

(5) The Minister may, by legislative instrument, specify conditions for the purposes of paragraph (4)(c).

(5A) The Minister may, by legislative instrument, exempt a specified building redevelopment project from subsection (4).

(5B) Subsection (4) does not apply if the supply of the eligible services mentioned in paragraph (4)(a) is, or will be, in the circumstances specified in a determination under subsection 360Q(4).

Infrastructure installed under a contract

(6) If:

(a) a carrier (other than an NBN corporation) has installed telecommunications network infrastructure that will enable the supply of eligible services to all of the premises in a particular area; and

(b) the area does not consist of, and is not included in:

(i) the project area of a real estate development project; or

(ii) the project area of a building redevelopment project; and

(d) under the contract, the carrier is or was required, on reasonable request by a carriage service provider on behalf of an end‑user at premises in the area, to connect the premises to a qualifying telecommunications network in order that the carriage service provider can provide eligible services to the end‑user at the premises; and

(e) the conditions specified in an instrument under subsection (7) are satisfied;

the carrier may, by written instrument, declare that the area is a provisional nominated service area for the purposes of this Part.

Note: For the format of the description of the area, see section 360LA.

(7) The Minister may, by legislative instrument, specify conditions for the purposes of paragraph (6)(e).

Publication etc.

(8) A carrier must publish on its website a copy of a declaration made by it under this section.

(9) A carrier must give a copy of a declaration made by it under this section to the ACMA.

Principles

(10) In making a declaration under this section, a carrier must comply with any principles determined under subsection (11).

(11) The Minister may, by legislative instrument, determine principles for the purposes of subsection (10).

Revocation

(12) A declaration made under this section cannot be revoked.

Variation

(13) A declaration made under this section cannot be varied except under subsection (14).

(14) The Minister may, by writing, vary a declaration made under this section.

(15) The Minister must give a copy of a variation under subsection (14) to the ACMA.

(16) Before making a decision under subsection (14) to vary a declaration, the Minister must:

(a) cause to be published on the Department’s website a notice:

(i) setting out the draft variation; and

(ii) inviting persons to make submissions to the Minister about the draft variation within the time limit specified in the notice; and

(b) consider any submissions received within the time limit specified in the notice.

(17) The time limit must not be shorter than 10 business days after the notice is published.

Declaration and variation are not legislative instruments

(18) A declaration made under this section is not a legislative instrument.

(19) A variation under subsection (14) is not a legislative instrument.

Area may consist of the whole or a part of a building

(20) An area specified in a declaration under subsection (6) may consist of the whole or a part of a building specified in the declaration.

360HA Nominated service area—anticipatory notice to be given to the ACMA by a carrier

Nominated service area—real estate development project

(1) If:

(a) after the commencement of this section, a carrier (other than an NBN corporation) enters into a contract for the installation of telecommunications network infrastructure that will enable the supply of eligible services to premises in the whole of the project area of a real estate development project; and

(b) when the installation is completed, the carrier will be required, by subsection 360H(2), to declare that the whole of the project area is a provisional nominated service area for the purposes of this Part;

the carrier must:

(i) states that the carrier has entered into the contract; and

(ii) specifies the project area; and

(iii) describes the telecommunications network infrastructure that is to be installed under the contract; and

(iv) sets out the carrier’s estimate of the likely completion date for the installation; and

(d) do so within 10 business days after entering into the contract.

Note: For the format of the description of the area, see section 360LA.

(2) If:

(a) before the commencement of this section, a carrier (other than an NBN corporation) entered into a contract for the installation of telecommunications network infrastructure that will enable the supply of eligible services to premises in the whole of the project area of a real estate development project; and

(b) the installation was not completed before the commencement of this section; and

(c) when the installation is completed, the carrier will be required, by subsection 360H(2), to declare that the whole of the project area is a provisional nominated service area for the purposes of this Part;

the carrier must:

(d) give the ACMA a written notice that:

(i) states that the carrier has entered into the contract; and

(ii) specifies the project area; and

(iii) describes the telecommunications network infrastructure that is to be installed under the contract; and

(iv) sets out the carrier’s estimate of the likely completion date for the installation; and

(e) do so:

(i) within 90 days after the commencement of this section; or

(ii) if the ACMA allows a longer period—within that longer period.

Note: For the format of the description of the area, see section 360LA.

Nominated service area—building redevelopment project

(3) If:

(b) when the installation is completed, the carrier will be required, by subsection 360H(4), to declare that the whole of the project area is a provisional nominated service area for the purposes of this Part;

the carrier must:

(i) states that the carrier has entered into the contract; and

(ii) specifies the project area; and

(iii) describes the telecommunications network infrastructure that is to be installed under the contract; and

(iv) sets out the carrier’s estimate of the likely completion date for the installation; and

(d) do so within 10 business days after entering into the contract.

Note: For the format of the description of the area, see section 360LA.

(4) If:

(b) the installation was not completed before the commencement of this section; and

(c) when the installation is completed, the carrier will be required, by subsection 360H(4), to declare that the whole of the project area is a provisional nominated service area for the purposes of this Part;

the carrier must:

(d) give the ACMA a written notice that:

(i) states that the carrier has entered into the contract; and

(ii) specifies the project area; and

(iii) describes the telecommunications network infrastructure that is to be installed under the contract; and

(iv) sets out the carrier’s estimate of the likely completion date for the installation; and

(e) do so:

(i) within 90 days after the commencement of this section; or

(ii) if the ACMA allows a longer period—within that longer period.

Note: For the format of the description of the area, see section 360LA.

360J Nominated service area—carrier licence conditions declarations

For the purposes of this Part, if, immediately before the commencement of this section, a carrier licence held by a carrier was subject to a condition under any of the following declarations in relation to a development area (within the meaning of the declaration):

(a) the Carrier Licence Conditions (OptiComm Co Pty Ltd) Declaration 2013;

(b) the Carrier Licence Conditions (Pivit Pty Ltd) Declaration 2013;

the development area is a nominated service area for the purposes of this Part.

360K Statutory infrastructure provider for a nominated service area

Nominated service area covered by a declaration under section 360H

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

(a) an area is a provisional nominated service area because of a declaration made by a carrier under section 360H; and

(b) the whole or a part of the provisional nominated service area is a nominated service area;

the carrier is the statutory infrastructure provider for the nominated service area.

(2) The Minister may, by legislative instrument, declare that:

(a) subsection (1) does not apply to a specified nominated service area; and

(b) a specified carrier is the statutory infrastructure provider for the nominated service area for the purposes of this Part.

Nominated service area resulting from the application of section 360J

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

(a) immediately before the commencement of this section, a carrier licence held by a carrier was subject to a condition under a declaration mentioned in section 360J; and

(b) as a result of the application of section 360J to the declaration, an area is a nominated service area;

the carrier is the statutory infrastructure provider for the nominated service area.

(4) The Minister may, by legislative instrument, declare that:

(a) subsection (3) does not apply to a specified nominated service area; and

(b) a specified carrier is the statutory infrastructure provider for the nominated service area for the purposes of this Part.

360L Designated service area and statutory infrastructure provider

The Minister may, by legislative instrument, declare that:

(a) a specified area is a designated service area for the purposes of this Part; and

(b) a specified carrier is the statutory infrastructure provider for the designated service area for the purposes of this Part.

Note: For the format of the description of the area, see section 360LA.

Subdivision D—Format of description of areas

360LA Format of description of areas

(1) An area declared under:

(a) subsection 360D(2); or

(b) subsection 360D(3); or

(d) subsection 360H(4); or

(e) subsection 360H(6); or

(f) section 360L;

must be described:

(g) in a TAB vector format using the GDA94 coordinate system; or

(h) if another format is determined under subsection (3)—in that other format.

(2) An area specified under:

(a) subsection 360HA(1); or

(b) subsection 360HA(2); or

(d) subsection 360HA(4);

must be described:

(e) in a TAB vector format using the GDA94 coordinate system; or

(f) if another format is determined under subsection (3)—in that other format.

(3) The ACMA may, by legislative instrument, determine a format for the purposes of paragraphs (1)(h) and (2)(f).

Division 3—Obligations of statutory infrastructure provider

360P Obligation of statutory infrastructure provider to connect premises

(1) The statutory infrastructure provider for a service area must, on reasonable request by a carriage service provider on behalf of an end‑user at premises in the service area:

(a) connect the premises to a qualifying fixed‑line telecommunications network in order that the carriage service provider can provide qualifying fixed‑line carriage services to the end‑user at the premises; or

(b) if it is not reasonable for the statutory infrastructure provider to connect the premises to a qualifying fixed‑line telecommunications network—connect the premises to a qualifying telecommunications network in order that the carriage service provider can provide:

(i) qualifying fixed wireless carriage services to the end‑user at the premises; or

(ii) qualifying satellite carriage services to the end‑user at the premises.

Exceptions

(2) An obligation does not arise under subsection (1) in relation to the connection of premises in the circumstances (if any) specified in a determination under subsection (3).

(3) The Minister may, by legislative instrument, determine circumstances for the purposes of subsection (2).

Requirements

(4) In fulfilling its obligations under subsection (1), the statutory infrastructure provider for a service area must comply with such requirements (if any) as are determined under subsection (5).

(5) The Minister may, by legislative instrument, determine one or more requirements for the purposes of subsection (4).

(6) A requirement may be of general application or may be limited to one or more service areas.

(7) Subsection (6) does not, by implication, limit the application of subsection 33(3A) of the Acts Interpretation Act 1901.

Terms and conditions

(8) If:

(a) a carriage service provider makes a request as mentioned in subsection (1) in relation to the connection of premises in a service area; and

(b) as a result, the statutory infrastructure provider has an obligation under subsection (1) to connect the premises; and

(i) the terms and conditions relating to price or a method of ascertaining price; and

(ii) other terms and conditions;

on which it offers to connect premises in the service area to a qualifying telecommunications network in order that a carriage service provider can provide qualifying carriage services to an end‑user at the premises; and

(d) the carriage service provider requests the statutory infrastructure provider to enter into an agreement that:

(i) relates to the connection of premises in the service area to a qualifying telecommunications network in order that the carriage service provider can provide qualifying carriage services to an end‑user at the premises; and

(ii) sets out terms and conditions that are the same as the terms and conditions published as mentioned in paragraph (c);

the statutory infrastructure provider must comply with the request mentioned in paragraph (d).

Note: For publication, see section 360W.

(9) If:

(a) a carriage service provider makes a request as mentioned in subsection (1) in relation to the connection of premises; and

(b) as a result, the statutory infrastructure provider has an obligation under subsection (1) to connect the premises; and

(c) the connection is not covered by an agreement between the statutory infrastructure provider and the carriage service provider;

the statutory infrastructure provider must comply with the obligation on the terms and conditions that were published on the statutory infrastructure provider’s website at the time when the request was made.

Note: For publication, see section 360W.

Ministerial determination—reasonable

(10) The Minister may, by legislative instrument:

(a) determine that, if the condition specified in the determination is satisfied in relation to premises, then, for the purposes of subsection (1), it is taken not to be reasonable for a statutory infrastructure provider to connect the premises to a qualifying fixed‑line telecommunications network; or

(b) determine that, if the conditions specified in the determination are satisfied in relation to premises, then, for the purposes of subsection (1), it is taken not to be reasonable for a statutory infrastructure provider to connect the premises to a qualifying fixed‑line telecommunications network.

(11) A determination under subsection (10) must be an instrument of a legislative character.

Response to request

(11A) If a carriage service provider makes a request as mentioned in subsection (1) on behalf of an end‑user at particular premises:

(a) the statutory infrastructure provider must:

(i) notify the carriage service provider that the statutory infrastructure provider will fulfil the request; or

(ii) refuse the request; and

(b) do so within:

(i) 10 business days after receiving the request; or

(ii) if a longer period is specified under subsection (11B)—that longer period.

(11B) The Minister may, by legislative instrument, specify a period for the purposes of subparagraph (11A)(b)(ii).

Notification of refusal of request

(12) If:

(a) a carriage service provider makes a request as mentioned in subsection (1) on behalf of an end‑user at particular premises; and

(b) the statutory infrastructure provider refuses the request;

then:

(i) give written notice of the refusal to the carriage service provider; and

(ii) do so within 5 business days after the refusal; and

(d) if the carriage service provider receives the notice—the carriage service provider must:

(i) give a copy of the notice to the end‑user; and

(ii) do so within 5 business days after receiving the notice.

360Q Obligation of statutory infrastructure provider to supply eligible services—premises

(1) The statutory infrastructure provider for a service area must, on reasonable request by a carriage service provider:

(a) supply an eligible service to the carriage service provider in order that the carriage service provider can provide qualifying carriage services to end‑users at premises in the service area; and

(b) do so on the terms and conditions that were published on the statutory infrastructure provider’s website at the time when the request was made.

Note: For publication, see section 360X.

(1A) The eligible service must enable the carriage service provider to supply, to end‑users at premises in the service area, carriage services that can be used by those end‑users to make and receive voice calls.

(1B) Subsection (1A) does not apply if the carriage service is supplied using a satellite.

(1C) To avoid doubt, the requirement in subsection (1A) is part of the obligation under subsection (1).

Exceptions

(2) If:

(a) a statutory infrastructure provider for a service area supplies an eligible service to a carriage service provider in order that the carriage service provider can provide qualifying carriage services to end‑users at premises in the service area; and

(b) the eligible service enables the carriage service provider to supply, to end‑users at premises in the service area, carriage services that can be used by those end‑users to make and receive voice calls; and

(c) the eligible service is a declared service (within the meaning of Part XIC of the Competition and Consumer Act 2010); and

(d) the statutory infrastructure provider is subject to a standard access obligation (within the meaning of Part XIC of the Competition and Consumer Act 2010) in relation to the eligible service;

the statutory infrastructure provider does not have an obligation under subsection (1) to supply the eligible service to the carriage service provider in order that the carriage service provider can provide qualifying carriage services to end‑users at premises in the service area.

(2A) Paragraph (2)(b) does not apply if the carriage service is supplied using a satellite.

(3) An obligation does not arise under subsection (1) in relation to supply of an eligible service in the circumstances (if any) specified in a determination under subsection (4).

(4) The Minister may, by legislative instrument, determine circumstances for the purposes of subsection (3).

Requirements

(5) In fulfilling its obligations under subsection (1), the statutory infrastructure provider for a service area must comply with such requirements (if any) as are determined under subsection (6).

(6) The Minister may, by legislative instrument, determine one or more requirements for the purposes of subsection (5).

(7) A requirement may be of general application or may be limited to one or more service areas.

(8) Subsection (7) does not, by implication, limit the application of subsection 33(3A) of the Acts Interpretation Act 1901.

Terms and conditions

(9) If:

(a) a carriage service provider makes a request as mentioned in subsection (1) in relation to the supply of an eligible service; and

(b) as a result, the statutory infrastructure provider has an obligation under subsection (1) to supply the eligible service; and

(i) the terms and conditions relating to price or a method of ascertaining price; and

(ii) other terms and conditions;

on which it offers to supply eligible services to carriage service providers in order that the carriage service providers can provide qualifying carriage services to end‑users at premises in the service area; and

(d) the carriage service provider requests the statutory infrastructure provider to enter into an agreement that:

(i) relates to the supply of eligible services to the carriage service provider in order that the carriage service provider can provide qualifying carriage services to end‑users at premises in the service area; and

(ii) sets out terms and conditions that are the same as the terms and conditions published as mentioned in paragraph (c);

the statutory infrastructure provider must comply with the request mentioned in paragraph (d).

Note: For publication, see section 360X.

(10) If:

(a) a carriage service provider makes a request as mentioned in subsection (1) in relation to the supply of an eligible service; and

(b) as a result, the statutory infrastructure provider has an obligation under subsection (1) to supply the eligible service; and

(c) the supply of the eligible service is not covered by an agreement between the statutory infrastructure provider and the carriage service provider;

Note: For publication, see section 360X.

360R Notification obligations of statutory infrastructure provider

Scope

(1) This section applies if a carrier (the first carrier) is the statutory infrastructure provider for:

(a) a nominated service area; or

(b) a designated service area.

Obligations

(2) If the first carrier becomes aware that it is likely that it will no longer be able to fulfil its obligations under section 360P or 360Q, so far as they relate to the area, the first carrier must:

(a) give written notice of the matter to:

(i) the Secretary of the Department; and

(ii) the ACMA; and

(b) do so as soon as practicable after becoming so aware.

(3) If:

(a) subsection (2) applies; and

(b) the first carrier becomes aware that another carrier is willing to become the statutory infrastructure provider for the area;

the first carrier must:

(i) the Secretary of the Department; and

(ii) the ACMA; and

(d) do so as soon as practicable after becoming so aware.

360S Targets for NBN Co

(1) The Parliament intends that NBN Co should take all reasonable steps to ensure that the telecommunications networks that:

(a) are operated by NBN Co; and

(b) are used to supply qualifying fixed‑line carriage services to customers in Australia;

are (when considered together) capable of being used to supply fixed‑line carriage services, where:

(d) the peak upload transmission speed of the carriage service is at least 10 megabits per second;

to at least 90% of premises in the areas that, according to NBN Co’s website, are serviced by NBN Co’s fixed‑line carriage services.

(2) The Parliament intends that NBN Co should take all reasonable steps to ensure that the telecommunications networks that:

(a) are operated by NBN Co; and

(b) are used to supply qualifying fixed‑line carriage services to customers in Australia;

are (when considered together) capable of being connected to at least 92% of premises in Australia.

(3) In fulfilling its obligations under section 360P or 360Q, NBN Co must have regard to subsections (1) and (2) of this section.

Division 4—Standards, benchmarks and rules

360U Standards and benchmarks

Standards

(1) The Minister may, by legislative instrument, determine standards to be complied with by statutory infrastructure providers in relation to any or all of the following matters:

(a) the terms and conditions of the supply of an eligible service to a carriage service provider in order that the carriage service provider can provide qualifying carriage services to an end‑user at premises in a relevant service area;

(b) the reliability of such an eligible service supplied to a carriage service provider;

(c) the maximum period within which a statutory infrastructure provider must begin to supply such an eligible service following the making of a request by a carriage service provider;

(d) the maximum period within which a statutory infrastructure provider must rectify a fault or service difficulty relating to such an eligible service following the making of a report by a carriage service provider about the fault or service difficulty;

(e) any other matter concerning the supply, or proposed supply, of such an eligible service to a carriage service provider;

(f) the maximum period within which the statutory infrastructure provider must connect premises in a relevant service area to a qualifying telecommunications network in order that a carriage service provider can provide qualifying carriage services to an end‑user at the premises, following the making of a request by the carriage service provider on behalf of the end‑user;

(g) any other matter concerning the connection of premises in a relevant service area to a qualifying telecommunications network in order that a carriage service provider can provide qualifying carriage services to an end‑user at the premises.

(2) A determination under subsection (1) may be of general application or may be limited as provided in the determination.

(3) Subsection (2) does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901.

(3A) Standards determined under subsection (1) may make provision for or in relation to a matter by conferring a power on the ACMA to make a legislative instrument.

Compliance with standards

(4) A statutory infrastructure provider must comply with a standard determined under subsection (1).

(5) However, a statutory infrastructure provider is not required to comply with a standard determined under subsection (1) to the extent that the standard is inconsistent with an access agreement to which the statutory infrastructure provider is a party, so long as:

(a) the agreement was entered into before the commencement of the standard; and

(b) the agreement has not been varied after the commencement of the standard.

Performance benchmarks

(6) The Minister may, by legislative instrument, set minimum benchmarks in relation to compliance by a statutory infrastructure provider with a standard determined under subsection (1).

(7) An instrument under subsection (6) may be of general application or may be limited as provided in the instrument.

(8) Subsection (7) does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901.

(8A) Benchmarks set under subsection (6) may make provision for or in relation to a matter by conferring a power on the ACMA to make a legislative instrument.

Provider must meet or exceed minimum benchmarks

(9) A statutory infrastructure provider must meet or exceed a minimum benchmark set by an instrument under subsection (6).

360V Rules

(1) The Minister may, by legislative instrument, make rules to be complied with by statutory infrastructure providers in relation to any or all of the following matters:

(a) the process for resolution of complaints about the supply of an eligible service to a carriage service provider in order that the carriage service provider can provide qualifying carriage services to an end‑user at premises in a relevant service area;

(b) any other matter concerning the supply, or proposed supply, of such an eligible service to a carriage service provider;

(c) the process for resolution of complaints about the connection of premises in the service area to a qualifying telecommunications network in order that a carriage service provider can provide qualifying carriage services to an end‑user at the premises;

(d) any other matter concerning the connection of premises in the service area to a qualifying telecommunications network in order that a carriage service provider can provide qualifying carriage services to an end‑user at the premises.

(1A) Rules under subsection (1) may make provision for or in relation to a matter by conferring a power on the ACMA to make a legislative instrument.

Compliance

(2) A statutory infrastructure provider must comply with rules under subsection (1).

(3) However, a statutory infrastructure provider is not required to comply with a rule under subsection (1) to the extent that the rule is inconsistent with an access agreement to which the statutory infrastructure provider is a party, so long as:

(a) the agreement was entered into before the commencement of the rule; and

(b) the agreement has not been varied after the commencement of the rule.

Division 5—Publication of offers

360W Publication of offer etc.—connection of premises

(1) A statutory infrastructure provider for a service area must publish on its website:

(a) the terms and conditions relating to price or a method of ascertaining price; and

(b) other terms and conditions;

(2) The terms and conditions mentioned in subsection (1) must include the maximum period within which the statutory infrastructure provider must so connect premises following the making of a request by a carriage service provider on behalf of an end‑user at the premises.

(3) Subsection (2) does not limit subsection (1).

(4) An offer published under subsection (1) has no effect to the extent to which it is inconsistent with:

(a) a standard determined under section 360U; or

(b) rules made under section 360V.

360X Publication of offer—supply of eligible services

(1) A statutory infrastructure provider for a service area must publish on its website:

(a) the terms and conditions relating to price or a method of ascertaining price; and

(b) other terms and conditions;

(2) The terms and conditions mentioned in subsection (1) must include:

(a) the maximum period within which the statutory infrastructure provider must begin to supply such an eligible service following the making of a request by a carriage service provider; and

(b) the maximum period within which the statutory infrastructure provider must rectify a fault or service difficulty relating to such an eligible service following the making of a report by a carriage service provider about the fault or service difficulty.

(3) Subsection (2) does not limit subsection (1).

(4) An offer published under subsection (1) has no effect to the extent to which it is inconsistent with:

(a) a standard determined under section 360U; or

(b) rules made under section 360V.

Division 6—Miscellaneous

360XA Periodic compliance reports

(1) The Minister may, by legislative instrument, make rules requiring each statutory infrastructure provider to give to the ACMA periodic reports relating to the provider’s compliance with this Part.

Compliance

(2) A statutory infrastructure provider must comply with rules under subsection (1).

(3) A person is not excused from giving a report under rules under subsection (1) on the ground that the report might tend to incriminate the person or expose the person to a penalty.

(4) However, in the case of an individual:

(a) the report; or

(b) giving the report; or

is not admissible in evidence against the individual:

(d) in civil proceedings for the recovery of a penalty; or

(e) in criminal proceedings (other than proceedings for an offence against section 137.1 or 137.2 of the Criminal Code that relates to the report).

Other information‑gathering powers not limited

(5) This section does not, by implication, limit Part 27.

360Y Building redevelopment projects etc.

(1) For the purposes of this Part, a project is a building redevelopment project if:

(a) the project involves:

(i) the significant refurbishment or repurposing of one or more buildings so as to bring into existence one or more building units; and

(ii) the making available of any or all of those building units for sale or lease; and

(b) the conditions (if any) specified in an instrument under subsection (3) are satisfied.

(2) For the purposes of this Part, the area or areas occupied by the building or buildings are the project area for the building redevelopment project.

(3) The Minister may, by legislative instrument, specify conditions for the purposes of paragraph (1)(b).

(4) For the purposes of subsection (1), it is immaterial whether:

(a) the project has been, is being, or will be, implemented in stages; or

(b) different elements of the project have been, are being, or will be, carried out by different persons; or

(c) one or more approvals are given, are required, or will be required, under a law of the Commonwealth, a State or a Territory, for the project, or any element of the project.

360Z Register of statutory infrastructure providers and anticipatory notices

(1) The ACMA is to maintain a Register in which the ACMA includes:

(a) the name of each statutory infrastructure provider; and

(b) for each of those providers—the relevant service area or areas; and

(i) subsection 360HA(1); or

(ii) subsection 360HA(2); or

(iii) subsection 360HA(3); or

(iv) subsection 360HA(4).

(2) The Register may be maintained by electronic means.

(3) The Register is to be made available for inspection on the ACMA’s website.

360ZA Delegation

Delegation to the ACMA

(1) The Minister may, by writing, delegate to the ACMA any or all of the Minister’s powers under the following provisions:

(a) subsection 360D(14);

(b) subsection 360H(3);

(d) subsection 360H(7);

(e) subsection 360H(11);

(f) subsection 360P(3);

(g) subsection 360P(5);

(h) subsection 360P(10);

(i) subsection 360Q(4);

(j) subsection 360Q(6);

(k) subsection 360U(1);

(l) subsection 360U(6);

(m) subsection 360XA(1);

(n) subsection 360Y(3).

(2) In performing a delegated function or exercising a delegated power, the ACMA must comply with any written directions of the Minister.

Delegation to a member of the ACMA or to a member of the staff of the ACMA

(3) The Minister may, by writing, delegate to:

(a) a member of the ACMA; or

(b) a person who is:

(i) a member of the staff of the ACMA; and

(ii) an SES employee or acting SES employee;

any or all of the Minister’s powers under subsection 360H(14) (variation of nominated service area declaration).

(4) In exercising a delegated power, the delegate must comply with any written directions of the Minister.

Part 20—International aspects of activities of the telecommunications industry

Division 1—Simplified outline

364 Simplified outline

The following is a simplified outline of this Part:

• The Minister may give directions to the Signatories to the INTELSAT Agreement and the Inmarsat Convention.

• Carriers and carriage service providers may be required to comply with certain international conventions.

• The Minister may make Rules of Conduct about dealings with international telecommunications operators.

Division 2—Compliance with international agreements

365 INTELSAT and Inmarsat—directions to Signatories

(1) This section applies to a person if:

(a) the person is:

(i) a carrier; or

(ii) a carriage service provider; and

(b) either:

(i) the person is a Signatory within the meaning of the INTELSAT Agreement because the person has been designated, by or on behalf of the Commonwealth and in accordance with Article II(b) of that Agreement, to sign the INTELSAT Operating Agreement; or

(ii) the person is a Signatory within the meaning of the Convention on the International Maritime Satellite Organisation (Inmarsat) because the person has been designated, by or on behalf of the Commonwealth and in accordance with Article 2(3) of that Convention, to sign the Operating Agreement on the International Maritime Satellite Organisation (Inmarsat).

(2) The Minister may give the person such written directions as the Minister thinks necessary in relation to the person’s performance of the person’s functions as a Signatory within the meaning of that Agreement or Convention.

(3) The Minister must not give a direction under subsection (2) that relates to the manner in which the person is to deal with a particular customer.

(4) A person must comply with a direction under subsection (2).

366 Compliance with conventions

(1) This section applies to a person who is:

(a) a carrier; or

(b) a carriage service provider.

(2) The Minister may, by notice published in the Gazette, declare that, for the purposes of this section, a specified convention is binding in relation to the members of a specified class of persons.

(3) A person who is a member of that class must, in connection with:

(a) the operation by the person of telecommunications networks or of facilities; or

(b) the supply by the person of carriage services;

act in a way consistent with Australia’s obligations under that convention.

(4) The Minister may, by notice published in the Gazette, declare that, for the purposes of this section, a specified part of a specified convention is binding in relation to the members of a specified class of persons.

(5)