Contents
Part 14—National interest matters 1
Division 1—Simplified outline 1
311........................ Simplified outline................................................................ 1
Division 2—Obligations of ACMA and carriers and carriage service providers 3
312........................ ACMA’s obligations.......................................................... 3
313........................ Obligations of carriers and carriage service providers........ 3
314........................ Terms and conditions on which help is to be given............ 9
Division 3—Notification of changes to telecommunications services or telecommunications systems relating to obligation under subsection 313(1A) or (2A) 11
Subdivision A—Individual notifications 11
314A..................... Individual notifications..................................................... 11
314B...................... Assessment of proposed change....................................... 14
Subdivision B—Security capability plans 16
314C...................... Security capability plans................................................... 16
314D..................... Assessment of security capability plan............................. 17
314E...................... Relationship with section 314A........................................ 19
Division 4—Carriage service provider may suspend supply of carriage service in an emergency 20
315........................ Suspension of supply of carriage service in an emergency 20
Division 5—Directions by Home Affairs Minister 22
315A..................... Direction if use or supply of carriage services prejudicial to security 22
315B...................... Direction if risk of unauthorised interference or access involving telecommunications networks or facilities.......................................................................................... 23
Division 6—Home Affairs Secretary’s information‑gathering powers 27
315C...................... Home Affairs Secretary may obtain information and documents from carriers and carriage service providers.......................................................................................... 27
315D..................... Self‑incrimination............................................................. 28
315E...................... Copies of documents........................................................ 29
315F...................... Retention of documents.................................................... 29
315G..................... Delegation by Home Affairs Secretary............................. 30
Division 7—Information sharing and confidentiality 31
315H..................... Information sharing and confidentiality............................ 31
Division 8—Annual report 33
315J....................... Annual report.................................................................... 33
Division 8A—Review by Parliamentary Joint Committee on Intelligence and Security 35
315K...................... Review by Parliamentary Joint Committee on Intelligence and Security 35
Division 9—Generality of Part not limited 36
316........................ Generality of Part not limited............................................ 36
Part 15—Industry assistance 37
Division 1—Introduction 37
317A..................... Simplified outline of this Part........................................... 37
317B...................... Definitions........................................................................ 39
317C...................... Designated communications provider etc.......................... 45
317D..................... Electronic service.............................................................. 49
317E...................... Listed acts or things.......................................................... 50
317F...................... Extension to external Territories....................................... 52
Division 2—Voluntary technical assistance 53
317G..................... Voluntary technical assistance provided to ASIO, the Australian Secret Intelligence Service, the Australian Signals Directorate or an interception agency................... 53
317H..................... Form of technical assistance request................................. 56
317HAA............... Provision of advice to designated communications providers 57
317HAB................ Notification obligations..................................................... 58
317HA.................. Duration of technical assistance request............................ 59
317J....................... Specified period etc........................................................... 60
317JAA................. Decision‑making criteria................................................... 60
317JA.................... Variation of technical assistance requests......................... 61
317JB.................... Revocation of technical assistance requests...................... 65
317JC.................... Whether a technical assistance request is reasonable and proportionate 67
317K...................... Contract etc....................................................................... 68
Division 3—Technical assistance notices 70
317L...................... Technical assistance notices.............................................. 70
317LA................... Approval of technical assistance notices given by the chief officer of an interception agency of a State or Territory............................................................................ 71
317M..................... Form of technical assistance notice................................... 71
317MAA............... Provision of advice to designated communications providers 72
317MAB............... Notification obligations..................................................... 74
317MA.................. Duration of technical assistance notice.............................. 74
317N..................... Compliance period etc....................................................... 75
317P...................... Decision‑making criteria................................................... 76
317PA................... Consultation about a proposal to give a technical assistance notice 76
317Q..................... Variation of technical assistance notices........................... 77
317R...................... Revocation of technical assistance notices........................ 79
317RA................... Whether requirements imposed by a technical assistance notice are reasonable and proportionate 81
Division 4—Technical capability notices 82
317S...................... Attorney‑General may determine procedures and arrangements relating to requests for technical capability notices............................................................................... 82
317T...................... Technical capability notices............................................... 82
317TAAA Approval of technical capability notice 85
317TAA................ Provision of advice to designated communications providers 86
317TAB................ Notification obligations..................................................... 86
317TA................... Duration of technical capability notice.............................. 87
317U..................... Compliance period etc....................................................... 89
317V..................... Decision‑making criteria................................................... 89
317W..................... Consultation about a proposal to give a technical capability notice 90
317WA.................. Assessment and report...................................................... 91
317X..................... Variation of technical capability notices............................ 96
317XA.................. Approval of variation of technical capability notice.......... 98
317Y..................... Consultation about a proposal to vary a technical capability notice 99
317YA.................. Assessment and report.................................................... 100
317Z...................... Revocation of technical capability notices....................... 104
317ZAA................ Whether requirements imposed by a technical capability notice are reasonable and proportionate 105
Division 5—Compliance and enforcement 107
317ZA................... Compliance with notices—carriers and carriage service providers 107
317ZB................... Compliance with notices—designated communications provider (other than a carrier or carriage service provider)......................................................................... 107
317ZC................... Civil penalty provision.................................................... 108
317ZD................... Enforceable undertakings................................................ 109
317ZE.................... Injunctions...................................................................... 110
Division 6—Unauthorised disclosure of information etc. 111
317ZF.................... Unauthorised disclosure of information.......................... 111
317ZFA................. Powers of a court............................................................ 121
Division 7—Limitations 123
317ZG................... Designated communications provider must not be requested or required to implement or build a systemic weakness or systemic vulnerability etc........................... 123
317ZGA................ Limits on technical capability notices.............................. 124
317ZH................... General limits on technical assistance requests, technical assistance notices and technical capability notices........................................................................................ 125
Division 8—General provisions 130
317ZJ.................... Immunity........................................................................ 130
317ZK................... Terms and conditions on which help is to be given etc... 130
317ZKA................ Notification obligations................................................... 137
317ZL.................... Service of notices etc...................................................... 139
317ZM.................. Interception agency—chief officer and officer................ 141
317ZN................... Delegation by Director‑General of Security.................... 142
317ZP.................... Delegation by Director‑General of the Australian Secret Intelligence Service 142
317ZQ................... Delegation by Director‑General of the Australian Signals Directorate 143
317ZR................... Delegation by the chief officer of an interception agency 143
317ZRA................ Relationship of this Part to parliamentary privileges and immunities 144
317ZRB................. Inspection of records...................................................... 145
317ZS.................... Annual reports................................................................ 146
317ZT.................... Alternative constitutional basis....................................... 147
Part 16—Defence requirements and disaster plans 148
Division 1—Introduction 148
333........................ Simplified outline............................................................ 148
334........................ Defence authority............................................................ 148
Division 2—Supply of carriage services 149
335........................ Requirement to supply carriage services for defence purposes or for the management of natural disasters........................................................................................ 149
Division 3—Defence planning 151
336........................ Definitions...................................................................... 151
337........................ Preparation of draft agreement........................................ 151
338........................ ACMA’s certification of draft agreement....................... 152
339........................ Requirement to enter into certified agreement................. 153
340........................ Compliance with agreement............................................ 153
341........................ Withdrawal of certification of agreement........................ 153
342........................ Duration of agreement.................................................... 154
343........................ Variation of agreement.................................................... 154
Division 4—Disaster plans 156
344........................ Designated disaster plans................................................ 156
345........................ Carrier licence conditions about designated disaster plans 156
346........................ Service provider determinations about designated disaster plans 156
346A..................... Carrier and carriage service provider immunity.............. 156
Division 5—Delegation 158
347........................ Delegation....................................................................... 158
Part 17—Pre‑selection in favour of carriage service providers 159
348........................ Simplified outline............................................................ 159
349........................ Requirement to provide pre‑selection.............................. 159
349A..................... Local access line............................................................. 165
350........................ When pre‑selection is provided in favour of a carriage service provider 165
350A..................... Declared carriage services............................................... 167
351........................ Pre‑selection to be provided............................................ 167
352........................ Exemptions from requirement to provide pre‑selection... 168
353........................ Use of over‑ride dial codes............................................. 169
Part 18—Calling line identification 171
354........................ Simplified outline............................................................ 171
355........................ Calling line identification................................................ 171
356........................ Exemptions from calling line identification requirement. 171
Part 19—Statutory infrastructure providers 173
Division 1—Introduction 173
360........................ Simplified outline of this Part......................................... 173
360A..................... Definitions...................................................................... 173
360AA.................. Qualifying fixed wireless carriage service...................... 176
Division 2—Service areas and statutory infrastructure providers 178
Subdivision AA—Introduction 178
360B...................... Simplified outline of this Division.................................. 178
360C...................... Definition of service area............................................... 179
Subdivision A—Rules applicable before the designated day 180
360D..................... Interim NBN service area............................................... 180
360E...................... Statutory infrastructure provider for an interim NBN service area 182
Subdivision B—Rules applicable after the start of the designated day 182
360F...................... General service area........................................................ 182
360G..................... Statutory infrastructure provider for the general service area 183
Subdivision C—Rules applicable before, at and after the start of the designated day 183
360H..................... Nominated service area—declaration made by a carrier.. 183
360HA.................. Nominated service area—anticipatory notice to be given to the ACMA by a carrier 187
360J....................... Nominated service area—carrier licence conditions declarations 190
360K...................... Statutory infrastructure provider for a nominated service area 190
360L...................... Designated service area and statutory infrastructure provider 191
Subdivision D—Format of description of areas 192
360LA................... Format of description of areas........................................ 192
Division 3—Obligations of statutory infrastructure provider 193
360P...................... Obligation of statutory infrastructure provider to connect premises 193
360Q..................... Obligation of statutory infrastructure provider to supply eligible services—premises 196
360R...................... Notification obligations of statutory infrastructure provider 200
360S...................... Targets for NBN Co....................................................... 200
Division 4—Standards, benchmarks and rules 202
360U..................... Standards and benchmarks............................................. 202
360V..................... Rules............................................................................... 204
Division 5—Publication of offers 206
360W..................... Publication of offer etc.—connection of premises.......... 206
360X..................... Publication of offer—supply of eligible services............ 206
Division 6—Miscellaneous 208
360XA.................. Periodic compliance reports............................................ 208
360Y..................... Building redevelopment projects etc............................... 208
360Z...................... Register of statutory infrastructure providers and anticipatory notices 209
360ZA................... Delegation....................................................................... 210
Part 20—International aspects of activities of the telecommunications industry 212
Division 1—Simplified outline 212
364........................ Simplified outline............................................................ 212
Division 2—Compliance with international agreements 213
365........................ INTELSAT and Inmarsat—directions to Signatories..... 213
366........................ Compliance with conventions......................................... 213
Division 3—Rules of conduct about dealings with international telecommunications operators 215
367........................ Rules of conduct about dealings with international telecommunications operators 215
368........................ ACCC to administer Rules of Conduct........................... 217
369........................ Rules of Conduct to bind carriers and carriage service providers 218
370........................ Unenforceability of agreements...................................... 218
371........................ Investigations by the ACCC........................................... 218
372........................ Reviews of the operation of this Division....................... 219
Part 20A—Deployment of optical fibre etc. 220
Division 1—Simplified outline 220
372A..................... Simplified outline............................................................ 220
Division 2—Deployment of optical fibre lines 222
372B...................... Deployment of optical fibre lines to building lots........... 222
372C...................... Deployment of optical fibre lines to building units......... 224
372D..................... Exemptions—Ministerial instrument.............................. 226
Division 3—Installation of fibre‑ready facilities 227
Subdivision A—Installation obligations 227
372E...................... Installation of fibre‑ready facilities—building lots.......... 227
372F...................... Installation of fibre‑ready facilities—building units........ 228
Subdivision B—Sale of building lots and building units 230
372G..................... Sale of building lots and building units—subdivisions... 230
372H..................... Sale of building units—other projects............................. 233
372J....................... Acquisition of property................................................... 235
Subdivision D—Exemptions 235
372K...................... Exemptions—Ministerial instrument.............................. 235
Division 4—Third party access regime 238
372L...................... Third party access regime............................................... 238
372M..................... Terms and conditions of access...................................... 240
372N..................... Exemptions—Ministerial instrument.............................. 241
372NA.................. Code relating to access.................................................... 241
Division 5—Exemption of certain projects 243
372P...................... Exemption of certain projects.......................................... 243
Division 6—Miscellaneous 244
372Q..................... Real estate development projects etc............................... 244
372R...................... Subdivision of an area of land........................................ 246
372S...................... Building units................................................................. 246
372T...................... Sale of building lots........................................................ 246
372U..................... Sale of building units...................................................... 247
372V..................... Fixed‑line facilities.......................................................... 247
372W..................... Fibre‑ready facility.......................................................... 248
372X..................... Installation of a facility.................................................... 248
372Y..................... Installation of a fibre‑ready facility in proximity to a building lot or building unit 249
372Z...................... Sewerage services, electricity or water supplied to a building lot or building unit 249
372ZA................... Supply to the public........................................................ 251
372ZB................... Concurrent operation of State and Territory laws........... 251
372ZD................... NBN Co......................................................................... 251
Part 21—Technical regulation 253
Division 1—Simplified outline 253
373........................ Simplified outline............................................................ 253
Division 2—Interpretative provisions 255
374........................ Part applies to networks or facilities in Australia operated by carriers or carriage service providers 255
375........................ Manager of network or facility....................................... 255
Division 3—Technical standards about customer equipment and customer cabling 256
376........................ ACMA’s power to make technical standards................. 256
376A..................... ACMA must make technical standards if directed by the Minister 258
377........................ Adoption of voluntary standards.................................... 258
378........................ Procedures for making technical standards..................... 258
379........................ Making technical standards in cases of urgency............. 259
Division 4—Disability standards 261
380........................ Disability standards........................................................ 261
381........................ Adoption of voluntary standards.................................... 261
382........................ Procedures for making disability standards.................... 262
383........................ Effect of compliance with disability standards................ 263
Division 5—Technical standards about the interconnection of facilities 264
384........................ ACMA’s power to make technical standards................. 264
385........................ Adoption of voluntary standards.................................... 265
386........................ Procedures for making technical standards..................... 265
387........................ Procedures for making technical standards..................... 266
388........................ Provision of access......................................................... 267
389........................ Promotion of the long‑term interests of end‑users of carriage services and of services supplied by means of carriage services.............................................................. 267
Division 5A—Technical standards relating to Layer 2 bitstream services 268
389A..................... ACMA’s power to determine technical standards.......... 268
389B...................... Compliance with technical standards.............................. 268
Division 6—Connection permits and connection rules 270
Subdivision A—Connection permits authorising the connection of non‑standard customer equipment and non‑standard cabling 270
390........................ Application for connection permit................................... 270
391........................ Form of application......................................................... 270
392........................ Application to be accompanied by charge....................... 271
393........................ Further information......................................................... 271
394........................ Issue of connection permits............................................ 271
395........................ Connection permit has effect subject to this Act............. 272
396........................ Nominees of holder........................................................ 272
397........................ Duration of connection permits....................................... 272
398........................ Conditions of connection permits................................... 273
399........................ Offence of contravening condition.................................. 273
400........................ Formal warnings—breach of condition.......................... 274
401........................ Surrender of connection permit....................................... 274
402........................ Cancellation of connection permit................................... 274
403........................ Register of connection permits........................................ 275
Subdivision B—Connection rules 276
404........................ Connection rules............................................................. 276
405........................ Procedures for making connection rules......................... 276
Division 7—Labelling of customer equipment and customer cabling 278
406........................ Application of labels....................................................... 278
406A..................... Application of Division to agent of manufacturer or importer 278
407........................ Labelling requirements.................................................... 278
408........................ Requirements to apply labels—ancillary matters............. 279
409........................ Recognised testing authorities and competent bodies...... 281
410........................ Certification bodies......................................................... 281
411........................ Connection of customer equipment or customer cabling—breach of section 376 standards 281
412........................ Connection of labelled customer equipment or customer cabling not to be refused 283
413........................ Supply of unlabelled customer equipment or unlabelled customer cabling 285
414........................ Applying labels before satisfying requirements under subsection 408(5) 285
415........................ Failure to retain records etc............................................. 286
416........................ Application of labels containing false statements about compliance with standards 287
Division 8—Protected symbols 288
417........................ Protected symbols........................................................... 288
Division 9—Cabling providers 292
418........................ Cabling work.................................................................. 292
419........................ Types of cabling work.................................................... 292
420........................ Prohibition of unauthorised cabling work....................... 292
421........................ Cabling provider rules.................................................... 293
422........................ Procedures for making cabling provider rules................ 294
423........................ Application for cabling licence........................................ 295
424........................ Form of application......................................................... 295
425........................ Application to be accompanied by charge....................... 295
426........................ Further information......................................................... 295
427........................ Grant of cabling licence.................................................. 295
428........................ Time limit on licence decision......................................... 296
429........................ Notification of refusal of application............................... 297
430........................ Cabling licence has effect subject to this Act.................. 297
431........................ Duration of cabling licence............................................. 297
432........................ Conditions of cabling licence.......................................... 297
433........................ Procedures for changing licence conditions.................... 298
434........................ Offence in relation to contravening condition................. 298
435........................ Formal warnings—breach of condition.......................... 299
436........................ Surrender of cabling licence............................................ 299
437........................ Suspension of cabling licence......................................... 300
438........................ Cancellation of cabling licence........................................ 300
439........................ ACMA may limit application of Division in relation to customer cabling 301
440........................ Ministerial directions...................................................... 301
441........................ Delegation....................................................................... 302
442........................ Register of cabling licences............................................. 303
Division 10—Remedies for unauthorised connections to telecommunications networks etc. 304
443........................ Civil action for unauthorised connections to telecommunications networks etc. 304
444........................ Remedy for contravention of labelling requirements....... 305
445........................ Remedies for connection of unlabelled customer equipment or unlabelled customer cabling 306
446........................ Disconnection of dangerous customer equipment or customer cabling 308
447........................ Disconnection of customer equipment or customer cabling—protection of the integrity of networks and facilities........................................................................... 310
448........................ Civil action for dangerous connections to telecommunications networks etc. 311
449........................ Other remedies not affected............................................ 312
Division 11—Prohibited customer equipment and prohibited customer cabling 313
450........................ Declaration of prohibited customer equipment or prohibited customer cabling 313
452........................ Operation of prohibited customer equipment or customer cabling 313
Division 12—Pre‑commencement labels 315
453........................ Pre‑commencement labels............................................... 315
Division 13—Penalties payable instead of prosecution 316
453A..................... Penalties payable instead of prosecution......................... 316
Part 22—Numbering of carriage services and regulation of electronic addressing 317
Division 1—Simplified outline 317
454........................ Simplified outline............................................................ 317
Division 2—Numbering of carriage services 318
Subdivision AA—Management by numbering scheme manager 318
454A..................... Minister may determine numbering scheme manager..... 318
454B...................... No property rights in numbers........................................ 318
454C...................... Numbering scheme principles......................................... 318
454D..................... Revocation of determination........................................... 320
454E...................... Directions to numbering scheme manager...................... 320
454F...................... Numbering scheme manager providing information to the ACMA 321
454G..................... Directions to comply with rules...................................... 322
454H..................... Numbering scheme documents are not legislative instruments 322
Subdivision A—Management by the ACMA 322
455A..................... Application..................................................................... 322
455........................ Numbering plan.............................................................. 323
456........................ Numbering plan—supply to the public........................... 324
457........................ Numbering plan—allocation otherwise than in accordance with an allocation system 325
458........................ Numbering plan—rules about portability of allocated numbers 325
459........................ ACMA to administer numbering plan............................ 326
459A..................... Delegation....................................................................... 326
460........................ Consultation about numbering plan................................ 327
461........................ Consultation with ACCC................................................ 328
461A..................... Making numbering plan in cases of urgency.................. 328
462........................ Compliance with the numbering plan.............................. 329
Subdivision B—Allocation system for numbers 330
463A..................... Numbering scheme manager........................................... 330
463........................ Allocation system for numbers....................................... 331
464........................ Consultation about an allocation system......................... 332
Subdivision C—Miscellaneous 332
465........................ Register of allocated numbers......................................... 332
466........................ Emergency service numbers........................................... 334
468........................ Collection of numbering charges.................................... 335
469........................ Collection of charges on behalf of the Commonwealth... 337
470........................ Cancellation of certain exemptions from charge.............. 337
471........................ Commonwealth not liable to charge................................ 337
472........................ Integrated public number database.................................. 338
473........................ Letters and symbols taken to be numbers....................... 339
Division 3—Regulation of electronic addressing 340
474........................ Declared manager of electronic addressing..................... 340
475........................ ACMA may give directions to declared manager of electronic addressing 340
476........................ ACCC may give directions to declared manager of electronic addressing 341
477........................ ACCC’s directions to prevail over the ACMA’s directions 343
Part 23—Standard agreements for the supply of carriage services 344
478........................ Simplified outline............................................................ 344
479........................ Standard terms and conditions apply unless excluded.... 344
482........................ Concurrent operation of State/Territory laws.................. 345
483........................ Competition and Consumer Act not affected by this Part 346
Part 24—Carriers’ powers and immunities 347
484........................ Schedule 3...................................................................... 347
Part 24A—Submarine cables 348
484A..................... Schedule 3A................................................................... 348
Part 25—Public inquiries 349
Division 1—Simplified outline 349
485........................ Simplified outline............................................................ 349
Division 2—Inquiries by the ACMA 350
486........................ When inquiry must be held............................................. 350
487........................ When inquiry may be held.............................................. 350
488........................ Informing the public about an inquiry............................. 351
489........................ Discussion paper............................................................ 351
490........................ Written submissions and protection from civil actions.... 352
491........................ Hearings......................................................................... 352
492........................ Hearing to be in public except in exceptional cases......... 353
493........................ Confidential material not to be published........................ 354
494........................ Direction about private hearings..................................... 355
495........................ Reports on inquiries........................................................ 356
Division 3—Inquiries by the ACCC 357
496........................ When inquiry must be held............................................. 357
497........................ When inquiry may be held.............................................. 357
498........................ Informing the public about an inquiry............................. 357
499........................ Discussion paper............................................................ 358
500........................ Written submissions and protection from civil actions.... 358
501........................ Hearings......................................................................... 359
502........................ Hearing to be in public except in exceptional cases......... 360
503........................ Confidential material not to be published........................ 360
504........................ Direction about private hearings..................................... 361
505........................ Reports on inquiries........................................................ 362
505A..................... ACCC may use material presented to a previous public inquiry 363
505B...................... ACCC may adopt a finding from a previous public inquiry 364
506........................ ACCC’s other powers not limited.................................. 364
Part 26—Investigations 365
507........................ Simplified outline............................................................ 365
508........................ Matters to which this Part applies................................... 365
509........................ Complaints to the ACMA............................................... 366
510........................ Investigations by the ACMA.......................................... 368
511........................ Preliminary inquiries....................................................... 369
512........................ Conduct of investigations............................................... 369
513........................ Complainant and certain other persons to be informed of various matters 370
514........................ Reference of matters to Ombudsman or other responsible person 371
515........................ Reference of matters to the ACCC.................................. 372
515A..................... Reference of matters to Information Commissioner........ 373
516........................ Reports on investigations................................................ 374
517........................ Publication of reports...................................................... 375
518........................ Person adversely affected by report to be given opportunity to comment 376
519........................ Protection from civil actions........................................... 376
Part 27—The ACMA’s information‑gathering powers 378
Division 1—Simplified outline 378
520........................ Simplified outline............................................................ 378
Division 2—Information‑gathering powers 379
521........................ The ACMA may obtain information and documents from carriers and service providers 379
522........................ The ACMA may obtain information and documents from other persons 380
523........................ Copying documents—reasonable compensation............. 382
524........................ Self‑incrimination........................................................... 382
525........................ Giving false or misleading information or evidence........ 383
527........................ Copies of documents...................................................... 383
528........................ ACMA may retain documents........................................ 383
Division 3—Record‑keeping rules 385
529........................ ACMA may make record‑keeping rules......................... 385
530........................ Compliance with record‑keeping rules............................ 386
531........................ Incorrect records............................................................. 386
Part 28—Enforcement 387
Division 1—Introduction 387
532........................ Simplified outline............................................................ 387
532A..................... References to the Spam Act 2003.................................... 388
Division 2—Inspectors and identity cards 389
533........................ Inspectors....................................................................... 389
534........................ Identity cards.................................................................. 390
Division 3—Search warrants relating to breaches of the Spam Act 2003 or Part 21 of this Act 391
535........................ Magistrate may issue warrant......................................... 391
536........................ Reasonable grounds for issuing warrant etc................... 392
537........................ Contents of warrant........................................................ 392
538........................ Warrants may be issued by telephone etc........................ 392
539........................ Provisions relating to issue of warrant by telephone etc. 392
540........................ Proceedings involving warrant issued by telephone etc.. 394
Division 4—Searches and seizures relating to breaches of the Spam Act 2003 or Part 21 of this Act 395
541........................ When is a thing connected with an offence?................... 395
541A..................... When is a thing connected with a breach of the Spam Act 2003? 395
542........................ Searches and seizures..................................................... 395
543........................ Production of identity card etc........................................ 396
544........................ Evidence of commission of other offences against Part 21 of this Act or other breaches of the Spam Act 2003........................................................................................ 397
545........................ Emergency entry, search and seizure.............................. 398
546........................ Retention of things seized............................................... 399
Division 5—Searches to monitor compliance with Part 21 400
547........................ Searches to monitor compliance with Part 21................. 400
Division 5A—Searches to monitor compliance with the Spam Act 2003 401
547A..................... Powers available to inspectors for monitoring compliance 401
547B...................... Monitoring powers......................................................... 401
547C...................... Production of identity card etc........................................ 403
547D..................... Monitoring warrants....................................................... 403
547E...................... Details of warrant to be given to occupier etc................. 405
547F...................... Announcement before entry............................................ 405
547G..................... Compensation for damage to equipment......................... 405
547H..................... Occupier entitled to be present during search.................. 406
Division 5B—Access to computer data that is relevant to the Spam Act 2003 408
547J....................... Access to computer data that is relevant to the Spam Act 2003 408
Division 6—Other powers of inspectors 410
548........................ General powers of inspectors......................................... 410
549........................ Power to require information etc..................................... 411
550........................ Retention of documents.................................................. 413
Division 7—Forfeiture 414
551........................ Court may order forfeiture.............................................. 414
552........................ Forfeited goods may be sold........................................... 414
Division 8—Future offences 415
553........................ Offences that are going to be committed......................... 415
Part 29—Review of decisions 416
554........................ Simplified outline............................................................ 416
555........................ Decisions that may be subject to reconsideration by the ACMA 416
556........................ Deadlines for reaching certain decisions......................... 416
557........................ Statements to accompany notification of decisions......... 417
558........................ Applications for reconsideration of decisions................. 417
559........................ Reconsideration by the ACMA...................................... 418
560........................ Deadlines for reconsiderations........................................ 418
561........................ Statements to accompany notification of decisions on reconsideration 418
562........................ Review by the Administrative Appeals Tribunal............ 419
Part 30—Injunctions 420
563........................ Simplified outline............................................................ 420
564........................ Injunctions...................................................................... 420
565........................ Interim injunctions.......................................................... 424
566........................ Discharge etc. of injunctions........................................... 425
567........................ Certain limits on granting injunctions not to apply.......... 425
568........................ Other powers of the court unaffected.............................. 426
Part 31—Civil penalties 427
569........................ Simplified outline............................................................ 427
570........................ Pecuniary penalties for contravention of civil penalty provisions 427
571........................ Civil action for recovery of pecuniary penalties.............. 429
572........................ Criminal proceedings not to be brought for contravention of civil penalty provisions 432
Part 31A—Enforceable undertakings 433
572A..................... Simplified outline............................................................ 433
572B...................... Acceptance of undertakings............................................ 433
572C...................... Enforcement of undertakings.......................................... 434
Part 31B—Infringement notices for contraventions of civil penalty provisions 436
572D..................... Simplified outline............................................................ 436
572E...................... When an infringement notice can be given...................... 436
572F...................... Matters to be included in an infringement notice............. 440
572G..................... Amount of penalty.......................................................... 442
572H..................... Withdrawal of an infringement notice............................. 442
572J....................... What happens if the penalty is paid................................. 443
572K...................... Effect of this Part on civil proceedings........................... 443
572L...................... Appointment of authorised infringement notice officer... 444
572M..................... Guidelines relating to infringement notices..................... 445
572N..................... Regulations..................................................................... 446
Part 32—Vicarious liability 447
573........................ Simplified outline............................................................ 447
574........................ Proceedings under this Act............................................. 447
574A..................... Definition........................................................................ 447
575........................ Liability of corporations.................................................. 448
576........................ Liability of persons other than corporations.................... 449
Part 33—Voluntary undertakings given by Telstra 451
Division 1—Introduction 451
577........................ Simplified outline............................................................ 451
Division 2—Structural separation 452
Subdivision A—Undertaking about structural separation 452
577A..................... Acceptance of undertaking about structural separation... 452
577AA.................. Acceptance of undertaking about structural separation may be subject to the occurrence of events 457
577AB................... When undertaking about structural separation comes into force 459
577AC................... Publication requirements for undertaking about structural separation 460
577AD.................. Compliance with undertaking about structural separation 461
577B...................... Variation of undertaking about structural separation....... 461
577BA................... Authorised conduct—subsection 51(1) of the Competition and Consumer Act 2010 462
Subdivision B—Migration plan 471
577BB................... Migration plan principles................................................ 471
577BC................... Migration plan................................................................ 471
577BD................... Approval of draft migration plan by the ACCC—plan given after undertaking about structural separation comes into force.............................................................. 474
577BDA................ Approval of draft migration plan by the ACCC—plan given before undertaking about structural separation comes into force.............................................................. 475
577BDB................ Approval of draft migration plan by the ACCC—plan given in compliance with a direction 477
577BDC................ Approval of draft migration plan by the ACCC—plan given in response to a request 479
577BE................... Effect of approval of draft migration plan....................... 480
577BF................... Variation of final migration plan..................................... 481
Division 3—Hybrid fibre‑coaxial networks 483
577C...................... Acceptance of undertaking about hybrid fibre‑coaxial networks 483
577CA................... Acceptance of undertaking about hybrid fibre‑coaxial networks may be subject to the occurrence of events........................................................................................ 484
577CB................... When undertaking about hybrid fibre‑coaxial networks comes into force 486
577CC................... Publication requirements for undertaking about hybrid fibre‑coaxial networks 487
577CD................... Compliance with undertaking about hybrid fibre‑coaxial networks 488
577D..................... Variation of undertaking about hybrid fibre‑coaxial networks 488
Division 4—Subscription television broadcasting licences 490
577E...................... Acceptance of undertaking about subscription television broadcasting licences 490
577EA................... Acceptance of undertaking about subscription television broadcasting licences may be subject to the occurrence of events....................................................... 491
577EB................... When undertaking about subscription television broadcasting licences comes into force 493
577EC................... Publication requirements for undertaking about subscription television broadcasting licences 494
577ED................... Compliance with undertaking about subscription television broadcasting licences 495
577F...................... Variation of undertaking about subscription television broadcasting licences 495
Division 5—Enforcement of undertakings 497
577G..................... Enforcement of undertakings.......................................... 497
Division 6—Limits on allocation of spectrum licences etc. 499
577GA.................. Excluded spectrum regime.............................................. 499
577H..................... Designated part of the spectrum...................................... 499
577J....................... Limits on allocation of certain spectrum licences to Telstra 499
577K...................... Limits on use of certain spectrum licences by Telstra..... 502
577L...................... Limits on assignment of certain spectrum licences to Telstra etc. 504
Division 7—Other provisions 506
577M..................... Associate........................................................................ 506
577N..................... Control............................................................................ 507
577P...................... Control of a company..................................................... 507
577Q..................... When Telstra is in a position to exercise control of a network 507
Part 34—Special provisions relating to conventions and directions 510
579........................ Simplified outline............................................................ 510
580........................ ACMA must have regard to conventions....................... 510
581........................ Power to give directions to carriers and service providers 511
Part 34A—Telstra successor companies and designated Telstra successor companies 513
Division 1—Introduction 513
581A..................... Simplified outline of this Part......................................... 513
581B...................... Object of this Part........................................................... 514
581C...................... Company........................................................................ 514
581D..................... Telecommunications law................................................. 514
581E...................... Prescribed telecommunications law................................ 514
Division 2—Telstra successor company and designated Telstra successor company 516
581F...................... Telstra successor company............................................. 516
581G..................... Designated Telstra successor company........................... 518
581H..................... Declarations—criteria..................................................... 519
581J....................... Demerged Telstra company............................................ 520
581K...................... ACMA to maintain register of Telstra successor companies and designated Telstra successor companies etc......................................................................................... 521
Division 3—Transfer of business 523
581L...................... Telecommunications business......................................... 523
581M..................... Notification of transfer of telecommunications business. 523
581MA.................. Notification of proposed transfer of prescribed business 525
Division 4—Transfer of assets 526
581N..................... Telecommunications asset............................................... 526
581P...................... Notification of transfer of telecommunications asset....... 526
581PA................... Notification of proposed transfer of prescribed asset...... 527
581Q..................... Transfer of an asset......................................................... 528
Division 5—Consultation relating to declarations 530
581R...................... Consultation relating to declarations............................... 530
Division 6—Directions 531
581TA................... Facilitation of compliance with a direction given by the ACMA 531
581TB................... Facilitation of obligations imposed on a named designated Telstra successor company 533
Division 7—Transitional 535
581U..................... Transitional—references in legislation to Telstra Infraco Limited 535
Part 34B—Access to supplementary facilities and telecommunications transmission towers 536
Division 1—Introduction 536
581V..................... Simplified outline of this Part......................................... 536
581W..................... Carrier company group................................................... 536
581X..................... Eligible company............................................................ 537
581XA.................. Deemed bodies corporate................................................ 537
Division 2—Access to supplementary facilities 539
581Y..................... Access to supplementary facilities.................................. 539
581Z...................... Terms and conditions of access...................................... 541
581ZA................... Ministerial pricing determinations................................... 543
Division 3—Access to telecommunications transmission towers 544
581ZB................... Definitions...................................................................... 544
581ZC................... Extended meaning of access........................................... 544
581ZD................... Access to telecommunications transmission towers........ 544
581ZE.................... Terms and conditions of access...................................... 547
581ZF.................... Code relating to access.................................................... 548
581ZG................... This Division does not limit Division 2.......................... 548
Division 4—Review of corporate control percentage 549
581ZH................... Review of corporate control percentage.......................... 549
Part 35—Miscellaneous 550
582........................ Simplified outline............................................................ 550
583........................ Penalties for certain continuing offences......................... 551
584........................ Procedure relating to certain continuing offences............ 552
585........................ Treatment of partnerships............................................... 552
586........................ Giving of documents to partnerships.............................. 553
587........................ Nomination of address for service of documents............ 553
588........................ Service of summons or process on foreign corporations—criminal proceedings 554
589........................ Instruments under this Act may provide for matters by reference to other instruments 555
590........................ Arbitration—acquisition of property............................... 556
591........................ Compensation—constitutional safety net........................ 557
592........................ Act not to affect performance of State or Territory functions 558
593........................ Funding of consumer representation, and of research, in relation to telecommunications 558
593A..................... Removal of Optus Networks’ tax losses........................ 559
594........................ Regulations..................................................................... 560
Part 14—National interest matters
Division 1—Simplified outline
311 Simplified outline
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
(c) safeguarding national security.
• 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;
(c) safeguarding national security.
(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:
(c) enforcing the criminal law and laws imposing pecuniary penalties;
(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:
(c) enforcing the criminal law and laws imposing pecuniary penalties;
(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:
(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.
(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) or (4); or
(b) in compliance with a direction that the ACMA gives in good faith in performance of its duties under section 312; or
(c) in compliance with a direction given under subsection 315A(1) or 315B(2).
(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
(c) providing relevant information about:
(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:
(c) advising the carrier or provider of that risk; and
(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:
(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 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
(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:
(c) advising the carrier or provider of that risk; and
(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:
(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
(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 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
(c) the suspension of the supply of the carriage service is reasonably necessary to:
(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;
(c) the potential consequences that any direction may have on competition in the telecommunications industry;
(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;
(c) section 570;
(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;
(c) section 570;
(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 either or both 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
(c) a member of the Australian Defence Force; 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);
(c) the following:
(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
(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.
• 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
(c) safeguarding national security.
• 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
(c) safeguarding national security.
• 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
(c) safeguarding national security.
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
(c) access by way of a standing request.
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.
IGIS official has the same meaning as in the Australian Security Intelligence Organisation Act 1979.
interception agency means:
(a) the Australian Federal Police; or
(b) the Australian Crime Commission; or
(c) the Police Force of a State or the Northern Territory.
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
(c) whether in the form of speech, music or other sounds; 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.
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
(c) a person who is a member of the staff referred to in subsection 31(1) of the Ombudsman Act 1976.
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
(c) for the purposes of this Part, particular software installed, or to be 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
(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:
(c) a broadcasting service; or
(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
(c) installing, maintaining, testing or using software or equipment; 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:
(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).
(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
(c) it is not practicable in the circumstances to give the technical assistance request in writing.
(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
(c) the Director‑General of the Australian Signals Directorate; 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
(c) the Director‑General of the Australian Signals Directorate; 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
(c) the Director‑General of the Australian Signals Directorate; 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 retain the record while the request is in force.
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
(c) the Director‑General of the Australian Signals Directorate; 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 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
(c) it is not practicable in the circumstances to make the variation in writing.
(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
(c) the Director‑General of the Australian Signals Directorate; 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 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
(c) the Director‑General of the Australian Signals Directorate; 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;
(c) the legitimate interests of the designated communications provider to whom the request relates;
(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;
(c) the Director‑General of the Australian Signals Directorate;
(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
(c) it is not practicable in the circumstances to give the technical assistance notice in writing.
(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
(c) it is not practicable in the circumstances to make the variation in writing.
(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;
(c) the legitimate interests of the designated communications provider to whom the notice relates;
(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:
(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).
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
(c) safeguarding national security.
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
(c) consist of either or both of the following:
(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;
(c) the objects of this Act;
(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:
(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 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:
(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 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
(c) the provider waives compliance with subsection (2).
(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.