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Telecommunications (Interception) Amendment Act 1995

  • - C2004A04991
  • In force - Latest Version
Act No. 141 of 1995 as made
An Act to amend the Telecommunications (Interception) Act 1979 and the Telecommunications Act 1991, and for related purposes
Administered by: Home Affairs
Date of Assent 12 Dec 1995
 

TELECOMMUNICATIONS (INTERCEPTION) AMENDMENT ACT 1995 No. 141 of 1995
- Assented to 12 December 1995

TELECOMMUNICATIONS (INTERCEPTION) AMENDMENT ACT 1995 No. 141 of 1995 - LONG TITLE

An Act to amend the Telecommunications (Interception) Act 1979 and
the Telecommunications Act 1991, and for related purposes

TELECOMMUNICATIONS (INTERCEPTION) AMENDMENT ACT 1995 No. 141 of 1995 - SECT 1
Short title

1. This Act may be cited as the Telecommunications (Interception) Amendment Act 1995.


(Minister's second reading speech made in-
Senate on 7 December 1995
House of Representatives on 1 December 1995)

TELECOMMUNICATIONS (INTERCEPTION) AMENDMENT ACT 1995 No. 141 of 1995 - SECT 2
Commencement

2.(1) Subject to this section, this Act commences on the day on which it receives the Royal Assent.


(2) Part 2 of Schedule 1 commences on a day to be fixed by Proclamation.


(3) If Part 2 of Schedule 1 does not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period.

TELECOMMUNICATIONS (INTERCEPTION) AMENDMENT ACT 1995 No. 141 of 1995 - SECT 3
Amendments

3. The Acts specified in the Schedules are amended in accordance with the applicable items in the Schedules, and the other items in the Schedules have effect according to their terms.

TELECOMMUNICATIONS (INTERCEPTION) AMENDMENT ACT 1995 No. 141 of 1995 - SCHEDULE 1

SCHEDULE 1 Section 3
AMENDMENT OF THE TELECOMMUNICATIONS (INTERCEPTION) ACT 1979
PART 1-DEFINITION OF "CLASS 2 OFFENCE"
1. Subsection 5(1) (definition of "class 2 offence"): Omit the
definition, substitute:
" 'class 2 offence' has the meaning given by section 5D;".
2. After section 5C:
Insert:
Class 2 offences
Class 2 offences
"5D.(1) This section sets out the offences that are class 2 offences
for the purposes of this Act.
Serious offences etc.
"(2) An offence is a class 2 offence if:
(a) it is an offence punishable by imprisonment for life or for a
period, or maximum period, of at least 7 years; and
(b) the particular conduct constituting the offence involved,
involves or would involve, as the case requires:
(i) loss of a person's life or serious risk of loss of a person's
life; or
(ii) serious personal injury or serious risk of serious personal
injury; or
(iii) serious damage to property in circumstances endangering the
safety of a person; or
(iv) trafficking in prescribed substances; or
(v) serious fraud; or
(vi) serious loss to the revenue of the Commonwealth, a State or
the Australian Capital Territory; or
(vii) bribery or corruption of, or by:
(A) an officer of the Commonwealth; or
(B) an officer of a State; or
(C) an officer of a Territory.
Offences involving planning and organisation
"(3) An offence is also a class 2 offence if it is an offence
punishable by imprisonment for life or for a period, or maximum period,
of at least 7 years, where the offence:
(a) involves 2 or more offenders and substantial planning and
organisation; and
(b) involves, or is of a kind that ordinarily involves, the use of
sophisticated methods and techniques; and
(c) is committed, or is of a kind that is ordinarily committed, in
conjunction with other offences of a like kind; and
(d) consists of, or involves, any of the following:
(i) theft;
(ii) handling of stolen goods;
(iii) tax evasion;
(iv) currency violations;
(v) extortion;
(vi) bribery or corruption of, or by:
(A) an officer of the Commonwealth; or

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(B) an officer of a State; or
(C) an officer of a Territory;
(vii) bankruptcy violations;
(viii) company violations;
(ix) harbouring criminals;
(x) armament dealings;
(xi) a sexual offence against a person who is under 16 (including
an offence against Part IIIA of the Crimes Act 1914).
Money laundering offences etc.
"(4) An offence is also a class 2 offence if it is an offence against
any of the following provisions:
(a) section 81 or 83 of the Proceeds of Crime Act 1987;
(b) section 73 of the Confiscation of Proceeds of Crime Act 1989 of
New South Wales;
(c) section 41Q of the Crimes (Confiscation of Profits) Act 1986 of
Victoria;
(d) section 64 of the Crimes (Confiscation of Profits) Act 1989 of
Queensland;
(e) section 563A of The Criminal Code of Western Australia;
(f) section 10b of the Crimes (Confiscation of Profits) Act, 1986 of
South Australia;
(g) section 67 of the Crime (Confiscation of Profits) Act 1993 of
Tasmania;
(h) section 74 of the Proceeds of Crime Act 1991 of the Australian
Capital Territory.
Offence against Part VIA of the Crimes Act 1914
"(5) An offence is also a class 2 offence if it is an offence against
Part VIA of the Crimes Act 1914.
Offences connected with other class 2 offences
"(6) An offence is also a class 2 offence if it is an offence
constituted by:
(a) aiding, abetting, counselling or procuring the commission of; or
(b) being, by act or omission, in any way, directly or indirectly,
knowingly concerned in, or party to, the commission of; or
(c) conspiring to commit;
an offence that is a class 2 offence under any of the preceding
subsections.
Officer of a State
"(7) Despite subsection 6G(3), a reference in this section to an
officer of a State includes a reference to an officer of the Police
Force of a State.".
3. Application
The amendments made by this Part apply to offences committed before or
after the commencement of this item.


PART 2-SPECIAL REGISTER OF WARRANTS
Division 1-Special Register of Warrants
4. Subsection 5(1) (definition of "Register"):
Omit the definition.
5. Subsection 5(1):
Insert:
" 'General Register' means the General Register of Warrants kept
under section 81A;
'Special Register' means the Special Register of Warrants kept under
section 81C;".
6. After section 81B:
Insert:
Special Register of Warrants
Special Register of Warrants
"81C.(1) The Commissioner of Police is to cause a Special Register of
Warrants to be kept.
Contents of Register
"(2) The Commissioner of Police is to cause to be recorded in the
Special Register the following particulars in relation to each
registrable expired warrant:
(a) the date of issue of the warrant;
(b) the Judge who issued the warrant;
(c) the agency to which the warrant was issued;
(d) the telecommunications service to which the warrant related;
(e) the name of the person specified in the warrant as a person using
or likely to use the telecommunications service;
(f) the period for which the warrant was in force;
(g) each serious offence in relation to which the Judge who issued
the warrant was satisfied, on the application for the warrant, as
mentioned in paragraph 45(d) or paragraph 46(1)(d), as the case may be.
Note: 'Registrable expired warrant' is defined by subsections (3) and
(4).
Registrable expired warrant-original warrant renewed
"(3) For the purposes of this section, if:
(a) a warrant was issued under section 45, 46 or 48; and

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(b) the warrant was an original warrant; and
(c) there were one or more renewals of the warrant; and
(d) at the end of the period of 3 months after the time (the
'cessation time') when the last renewal of the warrant ceased to be in
force, no criminal proceedings had been instituted, or were likely to
be instituted, against a person on the basis of information obtained as
a result of intercepting a communication under:
(i) the warrant; or
(ii) a renewal of the warrant; and
(e) the cessation time is after the commencement of this section;
the warrant, and each renewal of the warrant, becomes a registrable
expired warrant at the end of that period.
Registrable expired warrant-original warrant not renewed
"(4) For the purposes of this section, if:
(a) a warrant was issued under section 45, 46 or 48; and
(b) the warrant was an original warrant; and
(c) no renewal of the warrant was issued; and
(d) at the end of the period of 3 months after the time (the
'cessation time') when the warrant ceased to be in force, no criminal
proceedings had been instituted, or were likely to be instituted,
against a person on the basis of information obtained as a result of
intercepting a communication under the warrant; and
(e) the cessation time is after the commencement of this section;
the warrant becomes a registrable expired warrant at the end of that
period.
Interpretation-criminal proceedings supported by intercepted
information
"(5) A reference in this section to criminal proceedings that had
been, or were likely to be, instituted on the basis of information
obtained as a result of intercepting a communication under a warrant
includes a reference to criminal proceedings that were, or were likely
to be, supported by information obtained as a result of intercepting a
communication under a warrant.
Regular submission of Special Register to Minister
Original submission
"81D.(1) Within 3 months after the commencement of this section, the
Commissioner of Police must deliver the Special Register to the
Minister for inspection by the Minister.
Subsequent submissions
"(2) Once at least within each succeeding period of 3 months, the
Commissioner of Police must deliver to the Minister, for inspection by
the Minister, any part of the Special Register that represents
information recorded since the Special Register, or any part of the
Special Register, was last delivered to the Minister.
Special Register and General Register to be delivered at the same time
"(3) As far as is practicable, the Commissioner of Police is to
ensure that delivery of the Special Register, or a part of the Special
Register, as the case requires, takes place at the same time as the
delivery of a part of the General Register under subsection 81B(2).
Provision of information by eligible authorities
When section applies
"81E.(1) This section applies to an eligible authority of a State if
the eligible authority is an agency.
Commissioner may require information
"(2) The Commissioner of Police may, by written notice given to the
chief officer of the eligible authority, require the chief officer to
give the Commissioner of Police such information as the Commissioner of
Police requires for the purposes of complying with the obligations
imposed on him or her by section 81C.
Information to be given "(3) The chief officer must give the
information within the period, and in the manner, specified in the
notice.".
7. After paragraph 82(a):
Insert:
"(aa) to inspect a Commonwealth agency's records in order to
ascertain the accuracy of entries in the Special Register; and".
Division 2-General Register of Warrants
8. Subsection 79(2):
Before "Register" insert "General".
9. Subsection 81A(1):
Before "Register" insert "General".
10. Subsection 81A(2):
Before "Register" insert "General".
11. Subsection 81B(1):
Before "Register" insert "General".
12. Subsection 81B(2):
Before "Register" (wherever occurring) insert "General".
13. Subparagraph 82(a)(i):
Before "Register" insert "General".
14. Transitional

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Anything done before the commencement of this item in relation to the
Register of Warrants kept under section 81A of the Telecommunications
(Interception) Act 1979 has effect, after that commencement, as if it
had been done in relation to the General Register of Warrants referred
to in section 81A of the Telecommunications (Interception) Act 1979 as
amended by this Act.


PART 3-CIVIL REMEDIES
15. After section 76:
Insert:
Giving information in evidence in civil proceedings for remedial relief
"76A.(1) A person may give information obtained by intercepting a
communication in contravention of subsection 7(1) in evidence in a
proceeding by way of an application under section 107A for remedial
relief in respect of:
(a) the interception; or
(b) the communication (in contravention of section 63) of information
obtained by the interception.
"(2) A person may give designated warrant information in evidence in
a proceeding by way of an application under section 107A.".
16. Paragraph 77(1)(a):
Omit "or 76", substitute ", 76 or 76A".
17. Paragraph 77(1)(b):
Omit "or 76", substitute ", 76 or 76A".
18. After Part X:
Insert:
"PART XA-CIVIL REMEDIES
Civil remedies-unlawful interception or communication
When section applies
"107A.(1) This section applies to an interception of a communication
passing over a telecommunications system if the interception was in
contravention of subsection 7(1).
Aggrieved person
"(2) For the purposes of this section, a person is an aggrieved
person if, and only if:
(a) the person was a party to the communication; or
(b) the communication was made on the person's behalf.
Interception-civil court remedy
"(3) If a person (in this subsection called the 'defendant'):
(a) so intercepted the communication; or
(b) did an act or thing referred to in paragraph 7(1)(b) or (c) in
relation to the interception; the Federal Court of Australia or a court
of a State or Territory may, on the application of an aggrieved person,
grant the aggrieved person remedial relief in respect of the
interception by making such orders against the defendant as the court
considers appropriate.
Note: Paragraphs 7(1)(b) and (c) deal with the authorisation or
enabling of interception etc.
Communication-civil court remedy
"(4) If:
(a) information was obtained by intercepting the communication; and
(b) a person (in this subsection called the 'defendant') communicated
the information to another person in contravention of section 63;
the Federal Court of Australia or a court of a State or Territory may,
on the application of an aggrieved person, grant the aggrieved person
remedial relief in respect of the communication of the information by
making such orders against the defendant as the court considers
appropriate.
Interception-criminal court remedy
"(5) If a court convicts a person (in this subsection called the
'defendant') of an offence against subsection 7(1) constituted by:
(a) the interception; or
(b) the doing of an act or thing referred to in paragraph 7(1)(b) or
(c) in relation to the interception;
the court may, on the application of an aggrieved person, grant the
aggrieved person remedial relief in respect of the interception by
making such orders against the defendant as the court considers
appropriate.
Note: Paragraphs 7(1)(b) and (c) deal with the authorisation or
enabling of interception etc.
Communication-criminal court remedy "(6) If:
(a) information was obtained by intercepting the communication; and
(b) the information was communicated to a person in contravention of
section 63; and
(c) a court convicts a person (in this subsection called the
'defendant') of an offence against section 63 constituted by the
communication of the information;
the court may, on the application of an aggrieved person, grant the
aggrieved person remedial relief in respect of the communication of the
information by making such orders against the defendant as the court

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considers appropriate.
Orders
"(7) Without limiting the orders that may be made under this section
against a person (in this subsection called the 'defendant') in respect
of a particular interception or a particular communication of
information, a court may make an order of one or more of the following
kinds:
(a) an order declaring the interception or communication, as the case
requires, to have been unlawful;
(b) an order that the defendant pay to the aggrieved person such
damages as the court considers appropriate;
(c) an order in the nature of an injunction (including a mandatory
injunction);
(d) an order that the defendant pay to the aggrieved person an amount
not exceeding the amount that, in the opinion of the court, represents
the total gross income derived by the defendant as a result of the
interception or communication, as the case requires.
Terms etc. of orders
"(8) Without limiting the orders that may be made by a court under
this section, an order may:
(a) include such provisions as the court considers necessary for the
purposes of the order; and
(b) be made either unconditionally or subject to such terms and
conditions as the court determines.
Injunctive relief-variation etc.
"(9) A court may revoke or vary an order in the nature of an
injunction made by the court under this section.
Punitive damages
"(10) A reference in paragraph (7)(b) to damages includes a reference
to damages in the nature of punitive damages.
Minor irregularities in warrants etc.
"(11) Despite subsection (1) of this section, this section does not
apply to an interception that contravenes subsection 7(1) only because
of a defect or irregularity (other than a substantial defect or
irregularity):
(a) in, or in connection with the issue of, a document purporting to
be a warrant; or
(b) in connection with the execution of a warrant, or the purported
execution of a document purporting to be a warrant.
Limitation periods etc.
Interception-civil court remedy
"107B.(1) An application under subsection 107A(3) for the grant of
remedial relief in respect of an interception is to be made within 6
years after the end of the interception. Communication-civil court
remedy
"(2) An application under subsection 107A(4) for the grant of
remedial relief in respect of a communication of information is to be
made within 6 years after the communication.
Criminal court remedies
"(3) An application under subsection 107A(5) or (6) for the grant of
remedial relief is not subject to any limitation period, but must be
made as soon as practicable after the conviction concerned. No
limitation on other liability

No limitation
"107C.(1) This Part does not limit any liability (whether criminal or
civil) that a person has under any other provision of this Act or under
any other law.
Remedial relief even if defendant convicted of offence
"(2) An application under subsection 107A(3) or (4) may be made even
if the defendant referred to in that subsection has been convicted of
an offence under, or arising out of, this Act.
Concurrent operation of State and Territory laws
"107D. This Part is not intended to exclude or limit the operation of
a law of a State or Territory that is capable of operating concurrently
with this Part.
State or Territory courts-jurisdictional limits
"107E. This Part does not enable an inferior court of a State or
Territory to grant remedial relief of a kind that the court is unable
to grant under the law of that State or Territory.
Extended meaning of "conviction"- orders under section 19B of the
Crimes Act 1914
"107F. A reference in this Part to the conviction of a person of an
offence includes a reference to the making of an order under section
19B of the Crimes Act 1914 in relation to a person in respect of an
offence.
Note: Section 19B of the Crimes Act 1914 empowers a court that has
found a person to have committed an offence to take action without
proceeding to record a conviction.".
19. Application
The amendments made by this Part apply to the grant of remedial relief

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as follows:
(a) if the grant is in respect of an interception that contravened
subsection 7(1) of the Telecommunications (Interception) Act 1979-the
amendments apply to a contravention that occurs after the commencement
of this item;
(b) if the grant is in respect of a communication of information that
contravened section 63 of the Telecommunications (Interception) Act
1979-the amendments apply to a contravention that occurs after the
commencement of this item, even if the information was obtained by an
interception that occurred before the commencement of this item.


PART 4 -DISCLOSURE OF INFORMATION ABOUT THE EXISTENCE OF A WARRANT ETC.
20. Subsection 5(1):
Insert:
" 'designated warrant information' has the meaning given by section
6EA;".
21. After section 6E:
Insert:
Designated warrant information
"6EA. A reference in this Act to designated warrant information is a
reference to:
(a) information about any of the following:
(i) an application for a warrant;
(ii) the issue of a warrant;
(iii) the existence or non-existence of a warrant;
(iv) the expiry of a warrant; or
(b) any other information that is likely to enable the identification
of:
(i) the telecommunications service to which a warrant relates; or
(ii) a person specified in a warrant as a person using or likely to
use the telecommunications service to which the warrant relates.".
22. Section 63:
Add at the end:
"(2) Subject to this Part, a person must not, after the commencement
of this subsection:
(a) communicate designated warrant information to another person; or
(b) make use of designated warrant information; or
(c) make a record of designated warrant information; or
(d) give designated warrant information in evidence in a
proceeding.".
23. After section 63:
Insert:
Dealing in designated warrant information for the purposes of Part
III, VI, VIII or IX
"63AA. A person may, for the purposes of Part III, VI, VIII or IX:
(a) communicate designated warrant information to another person; or
(b) make use of designated warrant information; or
(c) make a record of designated warrant information; or
(d) give designated warrant information in evidence in a
proceeding.".
24. Section 63B:
Add at the end:
"(3) An employee of a carrier may, in the performance of his or her
duties as such an employee, communicate or make use of, or cause to be
communicated, designated warrant information if the information is
reasonably necessary to enable the interception of a communication
under a warrant.
"(4) An employee of a carrier may communicate or cause to be
communicated to another carrier, or to an employee of another carrier,
designated warrant information if the information is reasonably
necessary to enable the interception of a communication under a
warrant.".
25. Subsection 64(1):
Omit ", lawfully obtained information other than section 11A
information.", substitute:
"the following:
(a) lawfully obtained information other than section 11A information;
(b) designated warrant information.".
26. Subsection 65(1):
Omit ", lawfully obtained information.", substitute:
"the following:
(a) lawfully obtained information;
(b) designated warrant information.".
27. Section 65A:
Omit ", lawfully obtained information other than section 11A
information.", substitute:
"the following:
(a) lawfully obtained information other than section 11A information;
(b) designated warrant information.".
28. Section 67:

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Omit ", lawfully obtained information other than section 11A
information.", substitute:
"the following:
(a) lawfully obtained information other than section 11A information;
(b) designated warrant information.".
29. Section 68:
After "originally obtained by the originating agency" insert "or
designated warrant information". 30. Section 74:
Add at the end:
"(3) A person may give designated warrant information in evidence in
an exempt proceeding.".
31. Paragraph 76(c):
Omit "section", substitute "subsection".
32. Section 76:
Add at the end:
"(2) A person may give designated warrant information in evidence in
a proceeding by way of a prosecution for:
(a) an offence against subsection 7(1); or
(b) an offence against section 63; or
(c) an ancillary offence relating to an offence of a kind referred to
in paragraph (a) or (b) of this subsection.".
33. Section 77:
Add at the end:
"(3) Designated warrant information is admissible in evidence in a
proceeding only to the extent that section 63AA, 74, 76 or 76A permits
a person to give designated warrant information in evidence in that
proceeding.
"(4) For the purpose of determining the extent (if any) to which
section 63AA, 74, 76 or 76A permits a person to give designated warrant
information in evidence in a proceeding:
(a) a person may:
(i) communicate the information to another person; or
(ii) make use of the information; or
(iii) make a record of the information; or
(iv) give the information in evidence in the proceeding; and
(b) the information is admissible in evidence in the proceeding.".
34. Application
The amendments made by this Part apply in relation to a warrant issued
before or after the commencement of this item.


PART 5-REPORTING OBLIGATIONS
Division 1-Reports to the Minister
35. Subsection 94(2):
Omit the subsection, substitute:
"(2) The chief officer of a Commonwealth agency must give to the
Minister, within 3 months after a warrant issued to the agency ceases
to be in force, a written report containing:
(a) information about:
(i) the use made by the agency of information obtained by
interceptions under the warrant; and
(ii) the communication of such information to persons other than
officers of the agency; and
(iii) the number of arrests that have been, or are likely to be,
made on the basis of such information; and
(b) an assessment of the usefulness of information obtained by
interceptions under the warrant.".
36. Application
The amendment made by this Division applies to a warrant that ceases to
be in force after the commencement of this item.
Division 2-Reports by the Minister
37. Section 102:
Add at the end:
"(3) The report is to set out, for:
(a) each Commonwealth agency; and
(b) each eligible authority of a State, where the eligible authority
was an agency at any time during the year to which the report relates;
the percentage worked out using the formula:
Eligible warrants x 100
Total warrants
where:
'Eligible warrants' means the number of warrants that satisfy the
following conditions:
(a) the warrant was issued to the agency or authority, as the case
requires;
(b) the warrant was in force during the year to which the report
relates;
(c) a prosecution was instituted, or was likely to be instituted, on
the basis of information obtained by interceptions under:
(i) the warrant; or
(ii) if the warrant was a renewal of an original warrant:

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(A) the original warrant; or
(B) any other renewal of the original warrant; or
(iii) if the warrant was an original warrant-any renewal of the
original warrant;
'Total warrants' means the number of warrants that were:
(a) issued to the agency or authority, as the case requires; and
(b) in force during the year to which the report relates.
"(4) The report is to set out the percentage worked out using the
formula:
Eligible warrants x 100
Total warrants
where:
'Eligible warrants' means the number of warrants that satisfy the
following conditions:
(a) the warrant was issued to:
(i) a Commonwealth agency; or
(ii) an eligible authority of a State, where the eligible authority
was an agency at any time during the year to which the report relates;
(b) the warrant was in force during the year to which the report
relates;
(c) a prosecution was instituted, or was likely to be instituted, on
the basis of information obtained by interceptions under:
(i) the warrant; or
(ii) if the warrant was a renewal of an original warrant:
(A) the original warrant; or
(B) any other renewal of the original warrant; or
(iii) if the warrant was an original warrant-any renewal of the
original warrant;
'Total warrants' means the number of warrants that were:
(a) issued to:
(i) Commonwealth agencies; and
(ii) eligible authorities of States, where the eligible authorities
were agencies at any time during the year to which the report relates;
and
(b) in force during the year to which the report relates.
"(5) A reference in this section to a prosecution that was
instituted, or was likely to be instituted, on the basis of information
obtained by interceptions under a warrant includes a reference to a
prosecution that was supported, or likely to be supported, by
information obtained by interceptions under a warrant.".
38. After paragraph 103(a):
Insert:
"(aa) for:
(i) each Commonwealth agency; and
(ii) each eligible authority of a State, where the eligible
authority was an agency at any time during the year to which the report
relates;
the amount worked out using the formula:
Total warrant expenditure
Number of warrants
where:
'Total warrant expenditure' means the total expenditure (including
expenditure of a capital nature) incurred by the agency or the
authority, as the case requires, in connection with the execution of
warrants during the year to which the report relates;
'Number of warrants' means the number of warrants to which the total
warrant expenditure relates; and".
39. Application
The amendments made by this Division apply to a report relating to a
financial year beginning after the commencement of this item.


PART 6-AUTHORITY OF EMPLOYEES OF CARRIERS TO INTERCEPT COMMUNICATIONS
40. Paragraph 7(2)(a):
Omit the paragraph, substitute:
"(a) an act or thing done by an employee of a carrier in the course
of his or her duties for or in connection with:
(i) the installation of any line, or the installation of any
equipment, used or intended for use in connection with a
telecommunications service; or
(ii) the operation or maintenance of a telecommunications system;
or
(iii) the identifying or tracing of any person who has contravened,
or is suspected of having contravened or being likely to contravene, a
provision of Part VIIB of the Crimes Act 1914;
where it is reasonably necessary for the employee to do that act or
thing in order to perform those duties effectively;".
41. Paragraph 7(2)(aa):
After "line" insert ", where it is reasonably necessary for the person
to intercept the communication in order to perform those duties
effectively".

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42. After subsection 7(2):
Insert:
"(2A) For the purposes of paragraphs (2)(a) and (aa), in determining
whether an act or thing done by a person was reasonably necessary in
order for the person to perform his or her duties effectively, a court
is to have regard to such matters (if any) as are specified in, or
ascertained in accordance with, the regulations.".

TELECOMMUNICATIONS (INTERCEPTION) AMENDMENT ACT 1995 No. 141 of 1995 - SCHEDULE 2

SCHEDULE 2 Section 3
AMENDMENT OF THE TELECOMMUNICATIONS ACT 1991
1. Paragraph 62(f):
Omit "74", substitute "73A, 74".
2. After section 73:
Insert:
Interception capability
When section applies
"73A.(1) This section applies to the holder of a general
telecommunications licence or a public mobile licence. Licence
condition
"(2) It is a condition of the licence that the holder must comply
with subsection (4).
Minister may require interception capability
"(3) The Minister may give the holder a written notice requiring that
a telecommunications system operated, or proposed to be operated, by
the holder have a specified kind of interception capability. Note:
'Interception capability' is defined by subsection (8). Interception
capability to be provided
"(4) If a requirement is in force, the holder must provide the
interception capability in accordance with the requirement and on such
terms and conditions as are:
(a) agreed between the following parties:
(i) the holder;
(ii) the agency or agencies specified by the Minister in the
notice; 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
arbitrator is to be appointed by AUSTEL.
Terms and conditions-compliance with principles
"(5) The terms and conditions on which the holder is to provide an
interception capability are to comply with the following principles:
(a) the principle that the holder is to incur the costs (whether of a
capital nature or otherwise) relating to the creation or development of
the interception capability;
(b) the principle that the holder may recover those costs, over time,
from the other party or parties.
This subsection does not, by implication, limit subsection (4).
Terms and conditions- timing of implementation of requirement
"(6) Without limiting subsection (4), a term or condition agreed or
determined, as the case requires, under that subsection may relate to
the period within which the requirement is to be implemented.
Conduct of arbitration
"(7) The regulations may make provision for and in relation to the
conduct of an arbitration under this section.
Meaning of "interception capability"
"(8) For the purposes of this section, a telecommunications system
operated, or proposed to be operated, by the holder has an interception
capability if, and only if:
(a) assuming that a warrant were issued to an agency; and
(b) assuming that the warrant authorised the interception of a
communication passing over the system; the system would be capable of
enabling that communication to be intercepted.
Expressions to have the same meaning as in the Telecommunications
(Interception) Act 1979
"(9) Unless the contrary intention appears, an expression used in
this section and in the Telecommunications (Interception) Act 1979 has
the same meaning in this section as it has in that Act.
Meaning of "agency"
"(10) In this section:
'agency' means:
(a) an agency within the meaning of Part VI of the Telecommunications
(Interception) Act 1979; or
(b) the Australian Security Intelligence Organization.
References to "agency" in subsection (4)
"(11) A reference in subsection (4) to an agency includes a reference
to:
(a) in the case of an agency of a State-the State on behalf of the
agency; and
(b) in the case of an agency of the Commonwealth-the Commonwealth on
behalf of the agency.
Severability
"(12) This section has no effect to the extent (if any) to which it
purports to authorise:
(a) the imposition of taxation (within the meaning of section 55 of
the Constitution); or
(b) the acquisition of property (within the meaning of paragraph 51
(xxxi) of the Constitution) otherwise than on just terms (within the
meaning of that paragraph).".
3. Application
The amendments made by this Schedule apply to:
(a) a licence in force immediately before the commencement of this
item; and
(b) a licence granted after the commencement of this item.


NOTES ABOUT SECTION HEADINGS
1. On the day on which this Act receives the Royal Assent, the
headings to sections of the Telecommunications (Interception) Act 1979
are altered as follows:
(a) the heading to section 63 is altered by adding at the end "or
designated warrant information";
(b) the heading to section 76 is altered by omitting "where
interception otherwise unlawful" and substituting "in criminal
proceedings under this Act";
(c) the heading to section 77 is altered by inserting "and designated
warrant information" after "material".
2. On the commencement of Part 2 of Schedule 1 to this Act, the
headings to sections of the Telecommunications (Interception) Act 1979
are altered as follows:
(a) the heading to section 81A is altered by inserting "General"
before "Register";
(b) the heading to section 81B is altered by inserting "General"
before "Register".