Contents
Chapter 1—Introduction 1
Part 1‑1—Preliminary 1
1............ Short title............................................................................................. 1
2............ Commencement................................................................................... 1
4............ Act binds the Crown........................................................................... 1
4A......... Application of the Criminal Code....................................................... 1
4B......... Application to Norfolk Island............................................................. 2
Part 1‑2—Interpretation 3
5............ Interpretation....................................................................................... 3
5AA...... Eligible Commonwealth authority declarations................................. 50
5AB...... Authorised officers........................................................................... 51
5AC...... Authorisation of certifying officers................................................... 51
5AD...... Authorisation of certifying person.................................................... 53
5AE....... Authorisation of members of the staff of a Commonwealth Royal Commission 53
5A......... Communicating etc. certain information............................................ 54
5B......... Exempt proceedings.......................................................................... 54
5C......... Information or question relevant to inspection by Ombudsman........ 58
5D......... Serious offences................................................................................ 59
5E.......... Serious contraventions...................................................................... 66
5F.......... When a communication is passing over a telecommunications system 67
5G......... The intended recipient of a communication....................................... 67
5H......... When a communication is accessible to the intended recipient.......... 68
6............ Interception of a communication....................................................... 68
6AAA... When a computer network is appropriately used by an employee etc. of a Commonwealth agency etc. 71
6AA...... Accessing a stored communication................................................... 72
6A......... Investigation of an offence................................................................ 72
6B......... Involvement in an offence................................................................. 73
6C......... Issue of warrant to agency or eligible authority................................. 73
6D......... Judges............................................................................................... 73
6DA...... Nominated AAT members................................................................ 74
6DB...... Issuing authorities............................................................................. 75
6DC...... Part 4‑1 issuing authorities................................................................ 76
6E.......... Lawfully intercepted information...................................................... 77
6EA....... Interception warrant information....................................................... 77
6EAA.... Preservation notice information......................................................... 78
6EB....... Stored communications warrant information..................................... 78
6F.......... Offences............................................................................................ 79
6G......... Officer of the Commonwealth, of a State or of a Territory................ 79
6H......... Person to whom application relates................................................... 80
6J.......... Proceeding by way of a prosecution for an offence.......................... 81
6K......... Proceeding for confiscation or forfeiture or for pecuniary penalty.... 81
6L.......... Relevant proceeding.......................................................................... 81
6M........ Terminating the appointment of an officer......................................... 85
6N......... Declaration of staff members of State Police Forces......................... 85
6P.......... Identification of service..................................................................... 85
6Q......... Identification of telecommunications device...................................... 85
6R......... Communications Access Co‑ordinator.............................................. 86
6S.......... Permitted purposes—integrity purposes........................................... 86
6T.......... When a Part 5.3 supervisory order is taken to be in force................. 88
6U......... Succeeding Part 5.3 supervisory orders............................................ 88
Chapter 2—Interception of telecommunications 90
Part 2‑1—Prohibition on interception of telecommunications 90
7............ Telecommunications not to be intercepted......................................... 90
Part 2‑2—Warrants authorising the Organisation to intercept telecommunications 95
9............ Issue of telecommunications service warrants by Attorney‑General. 95
9A......... Issue of named person warrants by Attorney‑General...................... 96
9B......... Provisions applying to warrants issued under section 9 or 9A......... 99
10.......... Issue of warrant by Director‑General of Security in emergency for Organisation to intercept telecommunications 100
11A....... Telecommunications service warrant for collection of foreign intelligence 101
11B....... Named person warrant for collection of foreign intelligence........... 103
11C....... Foreign communications warrant for collection of foreign intelligence 105
11D....... Provisions applying to foreign intelligence warrants....................... 109
12.......... Persons authorised to intercept communications for Organisation.. 111
13.......... Discontinuance of interception before expiration of warrant........... 111
14.......... Certain records retained by Organisation to be destroyed............... 112
15.......... How warrants etc. to be dealt with.................................................. 112
16.......... Additional requirements for named person warrants....................... 115
17.......... Reports to be made to Attorney‑General on results of interception. 116
18.......... Evidentiary certificates.................................................................... 116
Part 2‑3—Emergency requests authorising officers of a carrier to intercept telecommunications 119
30.......... Emergency requests........................................................................ 119
Part 2‑4—Authorisation of interception for developing and testing interception capabilities 121
31.......... Applications for authorisation......................................................... 121
31A....... Attorney‑General may authorise interception for developing and testing interception capabilities 122
31AA.... Carrier to be notified of authorisation etc........................................ 123
31B....... Authorisation of employees of a security authority......................... 124
31C....... Destruction of records..................................................................... 124
31D....... Reports to the Attorney‑General..................................................... 124
31E........ Employees of security authorities.................................................... 125
Part 2‑5—Warrants authorising agencies to intercept telecommunications 126
Division 2—Declaration of State Law Enforcement Authorities as Agencies 126
34.......... Declaration of an eligible authority of a State as an agency............. 126
35.......... Preconditions for declaration........................................................... 126
36.......... State laws requiring copies of documents to be given to responsible Minister 129
37.......... Revocation of declaration................................................................ 129
38.......... Effect of revocation......................................................................... 130
38A....... Agencies authorised to apply for Part 5.3 warrants......................... 130
Division 3—Applications for warrants 133
39.......... Agency may apply for warrant........................................................ 133
40.......... Form of application......................................................................... 134
41.......... Contents of application.................................................................... 135
42.......... Affidavit to accompany written application..................................... 135
43.......... Information to be given on telephone application............................ 136
44.......... Giving further information to Judge................................................ 137
44A....... Application by interception agency of Victoria............................... 137
45.......... Application by interception agency of Queensland......................... 138
45A....... State law not affected...................................................................... 139
Division 4—Warrants 140
46.......... Issue of telecommunications service warrant.................................. 140
46A....... Issue of named person warrant....................................................... 147
47.......... Limit on authority conferred by warrant.......................................... 155
48.......... Issue of warrant for entry on premises............................................ 155
49.......... Form and content of warrant........................................................... 157
50.......... Issue of warrant on telephone application....................................... 159
51.......... Action by agency after warrant issued on telephone application..... 160
52.......... Judge or nominated AAT member may revoke warrant where section 51 contravened 160
54.......... Entry into force of warrants............................................................ 161
55.......... Exercise of authority conferred by warrant..................................... 161
57.......... Revocation of warrant by chief officer............................................ 163
58.......... Discontinuance of interceptions under certain warrants.................. 163
59.......... When revocation of certain warrants takes effect............................ 164
59A....... Notification to Secretary of the Department.................................... 164
59B....... Notification to Ombudsman by Commonwealth agencies in relation to Part 5.3 warrants 165
60.......... Notification to authorised representative of carrier of issue or revocation of certain warrants 165
61.......... Evidentiary certificates.................................................................... 167
61A....... Certified copy of warrant................................................................ 169
Part 2‑6—Dealing with intercepted information etc. 170
62.......... Application of Part.......................................................................... 170
63.......... No dealing in intercepted information or interception warrant information 170
63AA.... Dealing in interception warrant information for the purposes of Part 2‑2, 2‑5, 2‑7 or 2‑8 171
63AB.... Dealing in general computer access intercept information etc.......... 171
63AC.... Dealing in ASIO computer access intercept information etc........... 174
63AD.... Dealing in data disruption intercept information etc........................ 177
63AE..... Dealing in network activity warrant intercept information etc......... 180
63A....... Dealing in connection with existing proceeding.............................. 182
63B....... Dealing in information by employees of carriers............................. 183
63C....... Dealing in information for network protection purposes etc........... 185
63D....... Dealing in information for disciplinary purposes............................ 186
63E........ Responsible person for a computer network may communicate information to an agency 187
64.......... Dealing in connection with Organisation’s or Inspector‑General’s functions 187
65.......... Dealing in information obtained by Organisation............................ 188
65A....... Employee of carrier may communicate information to agency........ 190
66.......... Interceptor may communicate to officer who applied for warrant or authorised person 191
67.......... Dealing for permitted purposes....................................................... 192
68.......... Chief officer may communicate information obtained by agency.... 194
68A....... Communicating information obtained by the Secretary of the Attorney‑General’s Department 199
69.......... State authority may ask not to receive information under section 68 200
70.......... Communicating information obtained by interception under Part 2‑3 200
71.......... Dealing with information where interception suspected to be unlawful 201
72.......... Making record for purpose of permitted communication................ 202
73.......... Further dealing by recipient of certain information.......................... 202
74.......... Giving information in evidence in exempt proceeding.................... 203
75.......... Giving information in evidence where defect in connection with warrant 203
75A....... Evidence that has been given in exempt proceeding........................ 204
76.......... Giving information in evidence in criminal proceedings under this Act 204
76A....... Giving information in evidence in civil proceedings for remedial relief 205
77.......... Intercepted material and interception warrant information inadmissible except as provided 205
78.......... Where evidence otherwise inadmissible.......................................... 206
79.......... Destruction of restricted records that are not likely to be required for a permitted purpose 206
79AA.... Destruction of restricted records—information obtained before a Part 5.3 supervisory order came into force 207
79A....... Responsible person for a computer network must ensure restricted records are destroyed 208
Part 2‑7—Keeping and inspection of interception records 209
80.......... Commonwealth agencies to keep documents connected with issue of warrants 209
81.......... Other records to be kept by Commonwealth agencies in connection with interceptions 209
81AA.... Organisation to record particulars in relation to eligible authorities of a State 211
81A....... General Register of Warrants.......................................................... 212
81B....... Regular submission of General Register to Minister....................... 213
81C....... Special Register of Warrants........................................................... 213
81D....... Regular submission of Special Register to Minister........................ 216
81E........ Provision of information by eligible authorities.............................. 216
83.......... Inspections...................................................................................... 217
84.......... Reports............................................................................................ 218
85.......... Ombudsman may report on other breaches of this Act................... 218
85A....... Annual report may cover notified breaches in relation to Part 5.3 warrants 219
86.......... Ombudsman’s general powers........................................................ 219
87.......... Power to obtain relevant information.............................................. 220
88.......... Ombudsman to be given information and access notwithstanding other laws 221
89.......... Dealing with information for the purposes of inspection and report 222
90.......... Ombudsman not to be sued............................................................. 223
91.......... Delegation by Ombudsman............................................................. 223
92.......... Application of Ombudsman Act..................................................... 224
92A....... Exchange of information between Ombudsman and State inspecting authorities 224
Part 2‑8—Reports about interceptions under Parts 2‑3 and 2‑5 226
Division 1—Reports to the Minister 226
93.......... Annual reports to Minister about interceptions under Part 2‑3........ 226
94.......... Annual reports regarding applications and warrants under Part 2‑5 226
94A....... Reports regarding emergency interception action............................ 227
94B....... Reports regarding named person warrants...................................... 228
95.......... Minister may seek further information from Commonwealth agency 229
96.......... Annual reports by State authorities................................................. 229
97.......... Reports by Managing Directors about acts done in connection with certain warrants under Part 2‑5 230
Division 2—Reports by the Minister 231
99.......... Annual report by Minister about warrants under Part 2‑5............... 231
100........ Report to set out how many applications made and warrants issued 231
101........ Report to contain particulars about duration of warrants................. 234
102........ Report to contain information about effectiveness of warrants........ 236
102A..... Report regarding interceptions without warrant.............................. 239
102B..... Report regarding international requests........................................... 239
103........ Other information to be included in report...................................... 239
103A..... Annual report for 1999‑2000.......................................................... 241
103B..... Deferral of inclusion of information in report................................. 241
Division 3—Provisions about annual reports 244
104........ Annual reports................................................................................ 244
Part 2‑9—Offences 245
105........ Contravention of section 7 or 63..................................................... 245
106........ Obstruction..................................................................................... 245
107........ Offences relating to inspections under Part 2‑7............................... 246
Part 2‑10—Civil remedies 247
107A..... Civil remedies—unlawful interception or communication............... 247
107B..... Limitation periods etc...................................................................... 250
107C..... No limitation on other liability......................................................... 250
107D..... Concurrent operation of State and Territory laws............................ 251
107E...... State or Territory courts—jurisdictional limits................................ 251
107F...... Extended meaning of conviction—orders under section 19B of the Crimes Act 1914 251
Chapter 3—Preserving and accessing stored communications 252
Part 3‑1A—Preserving stored communications 252
Division 1—Outline of this Part 252
107G..... Outline of this Part.......................................................................... 252
Division 2—Domestic preservation notices 254
107H..... Domestic preservation notices......................................................... 254
107J...... Conditions for giving domestic preservation notices....................... 254
107K..... When a domestic preservation notice is in force.............................. 256
107L...... Revoking a domestic preservation notice........................................ 256
107M.... Persons who act on the issuing agency’s behalf............................. 257
Division 3—Foreign preservation notices 259
107N..... When a foreign preservation notice can be given............................ 259
107P...... Condition for giving a foreign preservation notice.......................... 259
107Q..... When a foreign preservation notice is in force................................ 260
107R..... Revoking a foreign preservation notice........................................... 261
107S...... Persons who act on the AFP’s behalf............................................. 262
Division 4—Provisions relating to preservation notices 263
107T...... Evidentiary certificates relating to actions by carriers...................... 263
107U..... Evidentiary certificates relating to actions by issuing agencies........ 263
107V..... Certified copies of preservation notices........................................... 264
107W.... How notices are to be given to carriers........................................... 264
Part 3‑1—Prohibition on access to stored communications 265
108........ Stored communications not to be accessed...................................... 265
Part 3‑2—Access by the Organisation to stored communications 269
109........ Access to stored communications under Part 2‑2 warrants............. 269
Part 3‑3—Access by criminal law‑enforcement agencies to stored communications 270
Division 1—Applications for warrants 270
110........ Criminal law‑enforcement agencies may apply for stored communications warrants 270
110A..... Meaning of criminal law‑enforcement agency................................ 270
110B..... Declarations in relation to the Immigration and Border Protection Department 274
111........ Form of applications....................................................................... 275
112........ Contents of written applications...................................................... 275
113........ Affidavits to accompany written applications.................................. 275
114........ Information to be given on telephone applications.......................... 276
115........ Giving further information to Judge................................................ 276
Division 2—Issuing of warrants 277
116........ Issuing of stored communications warrants.................................... 277
117........ What stored communications warrants authorise............................ 279
118........ Form and content of stored communications warrants.................... 279
119........ Duration of stored communications warrants.................................. 280
Division 3—How warrants etc. are dealt with 281
120........ Stored communications warrants issued on telephone applications. 281
121........ What happens when stored communications warrants are issued... 282
122........ Revocation of stored communications warrants by chief officers... 282
123........ What happens when stored communications warrants are revoked. 283
124........ Access to additional telecommunications services under stored communications warrants 283
Division 4—Provisions relating to execution of warrants 285
125........ Entry into force of stored communications warrants....................... 285
126........ Limit on authority conferred by warrant.......................................... 285
127........ Exercise of authority conferred by warrant..................................... 285
128........ Provision of technical assistance..................................................... 286
129........ Evidentiary certificates relating to actions by carriers...................... 286
130........ Evidentiary certificates relating to actions by criminal law‑enforcement agencies 287
131........ Certified copies of stored communications warrants....................... 288
132........ Obstruction..................................................................................... 288
Part 3‑4—Dealing with accessed information etc. 289
Division 1—Prohibition on dealing with accessed information etc. 289
133........ No dealing with accessed information etc....................................... 289
Division 2—Permitted dealings with accessed information 290
134........ Dealing in preservation notice information or stored communications warrant information 290
135........ Dealing in information by employees of carriers............................. 290
136........ Dealing in connection with Organisation’s functions...................... 292
137........ Dealing in information obtained by Organisation............................ 293
138........ Employee of carrier may communicate information to criminal law‑enforcement agency 294
139........ Dealing for purposes of investigation etc........................................ 294
139A..... Dealing for integrity purposes......................................................... 297
139B..... Dealing for purposes relating to Part 5.3 orders.............................. 297
140........ Dealing with information if access suspected to be unlawful.......... 298
141........ Making record for purpose of permitted communication................ 299
142........ Further dealing by recipient of certain information.......................... 299
142A..... Communicating information obtained as a result of an international assistance application 299
143........ Giving information in evidence in exempt proceeding.................... 300
144........ Giving information in evidence if communication unlawfully accessed 300
145........ Evidence that has been given in exempt proceeding........................ 301
146........ Giving information in evidence in civil proceedings for remedial relief 301
Division 3—Admissibility of evidence 302
147........ Accessed material inadmissible except as provided......................... 302
148........ Stored communications warrant information inadmissible except as provided 302
149........ Evidence that is otherwise inadmissible.......................................... 303
Division 4—Destruction of records 304
150........ Destruction of records..................................................................... 304
Part 3‑5—Keeping and inspection of records 305
Division 1—Obligation to keep records 305
151........ Obligation to keep records.............................................................. 305
Division 3—Inspection of preservation notice records by Inspector‑General of Intelligence and Security 307
158A..... Functions of the Inspector‑General of Intelligence and Security..... 307
Part 3‑6—Reports about access to stored communications 308
Division 1—Reports to the Minister 308
159........ Annual reports regarding applications and warrants under Part 3‑3 308
160........ Minister may seek further information from Commonwealth agency 308
Division 2—Reports by the Minister 309
161........ Annual report by Minister about stored communications warrants. 309
161A..... Report to contain information about preservation notices................ 309
162........ Report to set out how many applications made and warrants issued 309
163........ Report to contain information about effectiveness of warrants........ 311
163A..... Report regarding international requests........................................... 311
Division 3—Provisions about annual reports 312
164........ Annual reports................................................................................ 312
Part 3‑7—Civil remedies 313
165........ Civil remedies—unlawful access or communication....................... 313
166........ Limitation periods etc...................................................................... 316
167........ No limitation on other liability......................................................... 316
168........ Concurrent operation of State and Territory laws............................ 317
169........ State or Territory courts—jurisdictional limits................................ 317
170........ Extended meaning of conviction—orders under section 19B of the Crimes Act 1914 317
Chapter 4—Access to telecommunications data 318
Part 4‑1—Permitted access to telecommunications data 318
Division 1—Outline of Part 318
171........ Outline of Part................................................................................. 318
Division 2—General provisions 319
172........ No disclosure of the contents or substance of a communication..... 319
173........ Effect of Divisions 3 to 5................................................................ 319
Division 3—The Organisation 320
174........ Voluntary disclosure....................................................................... 320
175........ Authorisations for access to existing information or documents..... 320
176........ Authorisations for access to prospective information or documents 321
Division 4—Enforcement agencies 323
176A..... Meaning of enforcement agency..................................................... 323
177........ Voluntary disclosure....................................................................... 325
178........ Authorisations for access to existing information or documents—enforcement of the criminal law 326
178A..... Authorisations for access to existing information or documents—locating missing persons 327
179........ Authorisations for access to existing information or documents—enforcement of a law imposing a pecuniary penalty or protection of the public revenue...................................................... 327
180........ Authorisations for access to prospective information or documents 328
Division 4A—Foreign law enforcement 330
Subdivision A—Primary disclosures 330
180A..... Authorisations for access to existing information or documents—enforcing foreign or international laws 330
180B..... Authorisations for access to prospective information or documents—enforcing international laws 331
Subdivision B—Secondary disclosures 333
180C..... Authorisations to disclose information or documents—enforcing foreign or international laws 333
180D..... Authorisations to disclose information or documents—enforcement of the criminal law 334
Subdivision C—Conditions of disclosure to foreign law enforcement agencies 335
180E...... Disclosing information etc. to foreign countries or foreign law enforcement agencies 335
Division 4B—Privacy to be considered when making authorisations 336
180F...... Authorised officers to consider privacy.......................................... 336
Division 4C—Journalist information warrants 337
Subdivision A—The requirement for journalist information warrants 337
180G..... The Organisation............................................................................. 337
180H..... Enforcement agencies...................................................................... 337
Subdivision B—Issuing journalist information warrants to the Organisation 338
180J...... Requesting a journalist information warrant.................................... 338
180K..... Further information......................................................................... 339
180L...... Issuing a journalist information warrant.......................................... 339
180M.... Issuing a journalist information warrant in an emergency............... 340
180N..... Duration of a journalist information warrant................................... 342
180P...... Discontinuance of authorisations before expiry of a journalist information warrant 343
Subdivision C—Issuing journalist information warrants to enforcement agencies 343
180Q..... Enforcement agency may apply for a journalist information warrant 343
180R..... Further information......................................................................... 344
180S...... Oaths and affirmations.................................................................... 344
180T...... Issuing a journalist information warrant.......................................... 344
180U..... Form and content of a journalist information warrant..................... 346
180V..... Entry into force of a journalist information warrant........................ 346
180W.... Revocation of a journalist information warrant by chief officer...... 346
Subdivision D—Miscellaneous 347
180X..... Public Interest Advocates................................................................ 347
Division 5—Uses of telecommunications data connected with provision of access 348
181........ Uses of telecommunications data connected with provision of access 348
Division 6—Disclosure/use offences 349
181A..... Disclosure/use offences: authorisations under Division 3............... 349
181B..... Disclosure/use offences: certain authorisations under Division 4... 351
182........ Secondary disclosure/use offence: disclosures under Division 4.... 353
182A..... Disclosure/use offences: journalist information warrants................ 356
182B..... Permitted disclosure or use: journalist information warrants........... 357
Part 4‑2—Procedural requirements relating to authorisations 358
183........ Form of authorisations and notifications......................................... 358
184........ Notification of authorisations or revocations................................... 358
185........ Retention of authorisations.............................................................. 359
185A..... Evidentiary certificates relating to acts by carriers........................... 360
185B..... Evidentiary certificates relating to acts by the Organisation............. 361
185C..... Evidentiary certificates relating to acts by enforcement agencies..... 361
185D..... Notification etc. of authorisations intended to identify media sources 362
185E...... Reports on access to retained data................................................... 364
186........ Report to Minister........................................................................... 365
186A..... Obligation to keep records.............................................................. 368
Chapter 4A—Oversight by the Commonwealth Ombudsman 372
186B..... Inspection of records....................................................................... 372
186C..... Power to obtain relevant information.............................................. 373
186D..... Ombudsman to be given information and access despite other laws 374
186E...... Application of Ombudsman Act..................................................... 375
186F...... Exchange of information between Ombudsman and State inspecting authorities 376
186G..... Delegation by Ombudsman............................................................. 377
186H..... Ombudsman not to be sued............................................................. 377
186J...... Reports............................................................................................ 377
Chapter 5—Co‑operation with agencies 379
Part 5‑1—Definitions 379
187........ Definitions...................................................................................... 379
Part 5‑1A—Data retention 380
Division 1—Obligation to keep information and documents 380
187A..... Service providers must keep certain information and documents.... 380
187AA.. Information to be kept..................................................................... 383
187B..... Certain service providers not covered by this Part.......................... 386
187BA.. Ensuring the confidentiality of information..................................... 387
187C..... Period for keeping information and documents............................... 387
Division 2—Data retention implementation plans 389
187D..... Effect of data retention implementation plans.................................. 389
187E...... Applying for approval of data retention implementation plans........ 389
187F...... Approval of data retention implementation plans............................ 390
187G..... Consultation with agencies and the ACMA.................................... 391
187H..... When data retention implementation plans are in force.................... 393
187J...... Amending data retention implementation plans............................... 393
Division 3—Exemptions 395
187K..... The Communications Access Co‑ordinator may grant exemptions or variations 395
187KA.. Review of exemption or variation decisions.................................... 397
Division 4—Miscellaneous 399
187KB... Commonwealth may make a grant of financial assistance to service providers 399
187L...... Confidentiality of applications......................................................... 399
187LA... Application of the Privacy Act 1988................................................ 400
187M.... Pecuniary penalties and infringement notices.................................. 400
187N..... Review of operation of this Part...................................................... 400
187P...... Annual reports................................................................................ 401
Part 5‑2—Delivery points 403
188........ Delivery points................................................................................ 403
Part 5‑3—Interception capability 406
Division 1—Obligations 406
189........ Minister may make determinations.................................................. 406
190........ Obligations of persons covered by a determination......................... 407
191........ Obligations of persons not covered by a determination in relation to a kind of telecommunications service 407
Division 2—Exemptions 409
192........ The Communications Access Co‑ordinator may grant exemptions. 409
193........ ACMA may grant exemptions for trial services.............................. 410
Part 5‑4—Interception capability plans 411
195........ Nature of an interception capability plan......................................... 411
196........ Time for giving IC plans by carriers............................................... 412
197........ Time for giving IC plans by nominated carriage service providers. 412
198........ Consideration of IC plans............................................................... 413
199........ Commencement of IC plans............................................................ 415
200........ Compliance with IC plans............................................................... 416
201........ Consequences of changed business plans....................................... 416
202........ Confidential treatment of IC plans................................................... 416
Part 5‑4A—Requirement arising from proposed changes 418
202A..... Purpose of Part............................................................................... 418
202B..... Carrier or provider to notify of proposed change............................ 418
202C..... Communications Access Co‑ordinator may notify agencies........... 420
Part 5‑5—Delivery capability 421
203........ Communications Access Co‑ordinator may make determinations... 421
204........ Obligations of persons covered by a determination......................... 422
205........ Obligations of persons not covered by a determination in relation to a kind of telecommunications service 422
Part 5‑6—Allocation of costs 423
Division 1—Outline of Part 423
206........ Outline of Part................................................................................. 423
Division 2—Interception capability 424
207........ Costs to be borne by the carriers..................................................... 424
Division 3—Delivery capability 425
208........ Costs to be borne by the interception agencies................................ 425
209........ Working out costs of delivery capabilities....................................... 425
210........ Examination of lower cost options.................................................. 427
211........ ACMA may require independent audit of costs.............................. 427
Chapter 6—Miscellaneous 429
Part 6‑1—Miscellaneous 429
298........ Protection of persons—control order declared to be void............... 429
299........ Dealing with information obtained under a warrant—control order declared to be void 429
299A..... Schedule 1....................................................................................... 430
300........ Regulations..................................................................................... 431
Schedule 1—International production orders 432
Part 1—Introduction 432
1............ Simplified outline of this Schedule.................................................. 432
2............ Definitions...................................................................................... 433
3............ Designated international agreement................................................. 444
3A......... Disallowance of regulations relating to designated international agreements 448
3B......... Statutory requirements certificate—designated international agreements 449
3C......... Australia’s treaty‑making process................................................... 451
4............ Message application service............................................................ 452
5............ Voice call application service.......................................................... 452
6............ Video call application service.......................................................... 453
7............ Storage/back‑up service.................................................................. 453
8............ General electronic content service................................................... 454
9............ When material is posted on a general electronic content service...... 454
10.......... Uploaded material........................................................................... 455
10A....... When a prescribed communications provider is based in, or operates in, a foreign country 455
11.......... Intended recipient of a communication............................................ 456
12.......... Use of a thing.................................................................................. 456
13.......... Identification of a particular person................................................. 456
14.......... Eligible judge.................................................................................. 457
15.......... Nominated AAT member................................................................ 458
16.......... Issuing authority............................................................................. 458
17.......... Nominated AAT Security Division member................................... 459
17A....... Urgent circumstances...................................................................... 461
18.......... Meaning of expressions in other provisions of this Act.................. 461
19.......... Extra‑territorial application.............................................................. 462
20.......... Constitutional basis of this Schedule............................................... 462
Part 2—International production orders relating to the enforcement of the criminal law 463
Division 1—Introduction 463
21.......... Simplified outline of this Part.......................................................... 463
Division 2—International production orders relating to interception: enforcement of the criminal law 465
Subdivision A—Applications 465
22.......... Application for international production order—enforcement of the criminal law 465
23.......... Form of application......................................................................... 466
24.......... Contents of application.................................................................... 467
25.......... Affidavits to accompany written application................................... 467
26.......... Information to be given on telephone application............................ 468
27.......... Giving further information to eligible Judge or nominated AAT member 469
28.......... Application by interception agency of Victoria............................... 469
29.......... Application by interception agency of Queensland......................... 470
Subdivision B—International production orders relating to interception 472
30.......... Issue of international production order—enforcement of the criminal law 472
31.......... Content of international production order........................................ 479
32.......... Issue of further international production order................................ 481
Division 3—International production orders relating to stored communications: enforcement of the criminal law 483
Subdivision A—Applications 483
33.......... Application for international production order—enforcement of the criminal law 483
34.......... Form of application......................................................................... 484
35.......... Contents of written application........................................................ 484
36.......... Affidavits to accompany written application................................... 484
37.......... Information to be given on telephone application............................ 485
38.......... Giving further information to issuing authority............................... 485
Subdivision B—International production orders relating to stored communications 485
39.......... Issue of international production order—enforcement of the criminal law 485
40.......... Content of international production order........................................ 490
41.......... Issue of further international production order................................ 491
Division 4—International production orders relating to telecommunications data: enforcement of the criminal law 492
Subdivision A—Applications 492
42.......... Application for international production order—enforcement of the criminal law 492
43.......... Form of application......................................................................... 492
44.......... Contents of written application........................................................ 493
45.......... Affidavits to accompany written application................................... 493
46.......... Information to be given on telephone application............................ 493
47.......... Giving further information to issuing authority............................... 494
Subdivision B—International production orders relating to telecommunications data 494
48.......... Issue of international production order—enforcement of the criminal law 494
49.......... Content of international production order........................................ 497
50.......... Issue of further international production order................................ 499
Part 3—International production orders relating to Part 5.3 supervisory orders 500
Division 1—Introduction 500
51.......... Simplified outline of this Part.......................................................... 500
Division 2—International production orders relating to interception: Part 5.3 supervisory orders 501
Subdivision A—Applications 501
52.......... Application for international production order—Part 5.3 supervisory order 501
53.......... Form of application......................................................................... 502
54.......... Contents of application.................................................................... 502
55.......... Affidavits to accompany written application................................... 502
56.......... Information to be given on telephone application............................ 504
57.......... Giving further information to eligible Judge or nominated AAT member 504
58.......... Application by Part 5.3 IPO agency of Victoria.............................. 504
59.......... Application by Part 5.3 IPO agency of Queensland........................ 505
Subdivision B—International production orders relating to interception 507
60.......... Issue of international production order—Part 5.3 supervisory order 507
61.......... Content of international production order........................................ 516
62.......... Issue of further international production order................................ 518
Division 3—International production orders relating to stored communications: Part 5.3 supervisory orders 520
Subdivision A—Applications 520
63.......... Application for international production order—Part 5.3 supervisory order 520
64.......... Form of application......................................................................... 521
65.......... Contents of written application........................................................ 521
66.......... Affidavits to accompany written application................................... 521
67.......... Information to be given on telephone application............................ 522
68.......... Giving further information to issuing authority............................... 522
Subdivision B—International production orders relating to stored communications 522
69.......... Issue of international production order—Part 5.3 supervisory order 522
70.......... Content of international production order........................................ 527
71.......... Issue of further international production order................................ 528
Division 4—International production orders relating to telecommunications data: Part 5.3 supervisory orders 530
Subdivision A—Applications 530
72.......... Application for international production order—Part 5.3 supervisory order 530
73.......... Form of application......................................................................... 530
74.......... Contents of written application........................................................ 531
75.......... Affidavits to accompany written application................................... 531
76.......... Information to be given on telephone application............................ 531
77.......... Giving further information to issuing authority............................... 532
Subdivision B—International production orders relating to telecommunications data 532
78.......... Issue of international production order—Part 5.3 supervisory order 532
79.......... Content of international production order........................................ 536
80.......... Issue of further international production order................................ 537
Division 5—Notification to Ombudsman by Part 5.3 IPO agencies in relation to international production orders 538
81.......... Notification to Ombudsman by Part 5.3 IPO agencies in relation to international production orders 538
Part 4—International production orders relating to national security 539
Division 1—Introduction 539
82.......... Simplified outline of this Part.......................................................... 539
Division 2—International production orders relating to interception: national security 540
Subdivision A—Applications 540
83.......... Application for international production order—national security... 540
84.......... Form of application......................................................................... 543
85.......... Contents of application.................................................................... 543
86.......... Affidavits to accompany written application................................... 544
87.......... Information to be given on telephone application............................ 545
88.......... Giving further information to nominated AAT Security Division member 545
Subdivision B—International production orders relating to interception 546
89.......... Issue of international production order—national security.............. 546
90.......... Content of international production order........................................ 552
91.......... Issue of further international production order................................ 554
Division 3—International production orders relating to stored communications: national security 556
Subdivision A—Applications 556
92.......... Application for international production order—national security... 556
93.......... Form of application......................................................................... 558
94.......... Contents of written application........................................................ 558
95.......... Affidavits to accompany written application................................... 559
96.......... Information to be given on telephone application............................ 559
97.......... Giving further information to nominated AAT Security Division member 559
Subdivision B—International production orders relating to stored communications 560
98.......... Issue of international production order—national security.............. 560
99.......... Content of international production order........................................ 564
100........ Issue of further international production order................................ 565
Division 4—International production orders relating to telecommunications data: national security 566
Subdivision A—Applications 566
101........ Application for international production order—national security... 566
102........ Form of application......................................................................... 566
103........ Contents of written application........................................................ 567
104........ Affidavits to accompany written application................................... 567
105........ Information to be given on telephone application............................ 567
106........ Giving further information to nominated AAT Security Division member 568
Subdivision B—International production orders relating to telecommunications data 568
107........ Issue of international production order—national security.............. 568
108........ Content of international production order........................................ 571
109........ Issue of further international production order................................ 572
Part 5—Giving of international production orders 573
110........ Simplified outline of this Part.......................................................... 573
111........ Giving of international production orders—relevant agency........... 573
112........ Giving of international production orders—the Organisation......... 575
Part 6—Revocation of international production orders 578
113........ Simplified outline of this Part.......................................................... 578
114........ Revocation of international production orders—relevant agency.... 578
115........ Giving of instrument of revocation—relevant agency..................... 579
116........ Revocation of international production orders—the Organisation... 580
117........ Giving of instrument of revocation—the Organisation................... 580
118........ Delegation by the chief officer of a relevant agency........................ 581
119........ Delegation by the Director‑General of Security.............................. 582
Part 7—Objections to, and cancellation of, international production orders 583
120........ Simplified outline of this Part.......................................................... 583
121........ Prescribed communications provider may object to international production order 583
122........ Cancellation of international production orders............................... 584
Part 8—Compliance with international production orders 586
123........ Simplified outline of this Part.......................................................... 586
124........ Compliance with international production orders............................ 586
125........ When a prescribed communications provider meets the enforcement threshold 586
126........ Civil penalty provision—enforcement............................................. 588
Part 9—Reporting and record‑keeping requirements 589
Division 1—Introduction 589
127........ Simplified outline of this Part.......................................................... 589
Division 2—Reporting requirements 590
128........ Annual reports by relevant agencies................................................ 590
129........ Reports to be made to the Attorney‑General by the Director‑General of Security 591
130........ Annual reports by the Australian Designated Authority................. 592
131........ Annual reports by the Minister....................................................... 594
132........ Deferral of inclusion of information in Ministerial report............... 594
Division 3—Record‑keeping requirements 599
133........ Keeping documents associated with international production orders—relevant agencies 599
134........ Other records to be kept—relevant agencies................................... 600
135........ Keeping documents associated with international production orders—the Organisation 602
136........ Other records to be kept—the Organisation.................................... 603
137........ Keeping documents associated with international production orders—Australian Designated Authority 605
138........ Other records to be kept—Australian Designated Authority........... 606
Division 4—Register of international production orders 610
139........ Register of international production orders..................................... 610
Division 5—Destruction of records 612
140........ Destruction of records..................................................................... 612
Part 10—Oversight by the Commonwealth Ombudsman 615
141........ Simplified outline of this Part.......................................................... 615
142........ Inspection of records—relevant agency.......................................... 615
143........ Inspection of records—Australian Designated Authority............... 616
144........ Power to obtain relevant information.............................................. 617
145........ Ombudsman to be given information and access despite other laws 619
146........ Application of Ombudsman Act..................................................... 620
147........ Exchange of information between Ombudsman and State/Territory inspecting authorities 621
148........ Delegation by Ombudsman............................................................. 621
149........ Ombudsman not to be sued............................................................. 622
150........ Reports............................................................................................ 622
Part 11—Disclosure of protected information 624
151........ Simplified outline of this Part.......................................................... 624
152........ Prohibition on use, recording or disclosure of protected information or its admission in evidence 624
153........ Exceptions—general....................................................................... 624
154........ Exception—disclosure to the Minister............................................ 628
155........ Exception—disclosure to the Attorney‑General.............................. 629
156........ Exception—statistical information................................................... 629
157........ Exceptions—international production orders relating to interception 629
158........ Exceptions—international production orders relating to stored communications 637
159........ Exceptions—telecommunications data............................................ 638
Part 12—Evidentiary certificates 639
160........ Simplified outline of this Part.......................................................... 639
161........ Evidentiary certificates—compliance with international production orders by prescribed communications providers........................................................................................................ 640
162........ Evidentiary certificates—voluntary provision of associated information by prescribed communications providers 641
163........ Evidentiary certificates—interception.............................................. 648
164........ Evidentiary certificates—stored communications............................ 650
165........ Evidentiary certificates—telecommunications data.......................... 651
166........ Evidentiary certificates—Australian Designated Authority............. 652
Part 13—Incoming orders and requests 654
167........ Simplified outline of this Part.......................................................... 654
168........ Incoming orders and requests—exemptions from various prohibitions 654
169........ Interaction with the Privacy Act 1988.............................................. 655
Part 14—Miscellaneous 657
170........ Simplified outline of this Part.......................................................... 657
171........ Electronic service of documents...................................................... 657
172........ International production order issued in response to a telephone application—action required 658
173........ Duty of nominated AAT Security Division member....................... 660
174........ Certified copy of international production order—interception agency 660
175........ Certified copy of international production order—criminal law‑enforcement agency 661
176........ Certified copy of international production order—enforcement agency 661
177........ Certified copy of international production order—Part 5.3 IPO agency 661
178........ Certified copy of international production order—the Organisation 663
179........ Delegation by the Australian Designated Authority........................ 664
180........ Minor defects in connection with international production order.... 664
181........ Protection of persons—control order declared to be void............... 665
182........ Specification of international agreements........................................ 665
183........ Operation of the Mutual Assistance in Criminal Matters Act 1987 not limited 666
184........ Other functions or powers not limited............................................. 666
Endnotes 667
Endnote 1—About the endnotes 667
Endnote 2—Abbreviation key 669
Endnote 3—Legislation history 670
Endnote 4—Amendment history 690
An Act to prohibit the interception of, and other access to, telecommunications except where authorised in special circumstances or for the purpose of tracing the location of callers in emergencies, and for other purposes.
Chapter 1—Introduction
Part 1‑1—Preliminary
1 Short title
This Act may be cited as the Telecommunications (Interception and Access) Act 1979.
2 Commencement
This Act shall come into operation on the day on which the Australian Security Intelligence Organisation Act 1979 comes into operation.
4 Act binds the Crown
This Act binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory.
4A Application of the Criminal Code
Chapter 2 of the Criminal Code applies to all offences against this Act.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
4B Application to Norfolk Island
(1) This Act does not extend to Norfolk Island.
(2) Subsection (1) ceases to be in force when the Telecommunications Act 1992 (Norfolk Island) is repealed.
Note: Once subsection (1) ceases to be in force this Act will extend to Norfolk Island because of section 18 of the Norfolk Island Act 1979.
Part 1‑2—Interpretation
5 Interpretation
(1) In this Act, unless the contrary intention appears:
ACC means the Australian Crime Commission.
ACC Act means the Australian Crime Commission Act 2002.
access, in relation to a stored communication, has the meaning given by section 6AA. This definition does not apply to Schedule 1.
accessible, in relation to a communication, has the meaning given by section 5H.
access request has the meaning given by subsection 107P(1).
ACMA means the Australian Communications and Media Authority.
activities prejudicial to security has the same meaning as it has in the Australian Security Intelligence Organisation Act 1979.
affidavit includes affirmation.
AFP employee has the same meaning as in the Australian Federal Police Act 1979.
AFP Minister has the meaning given by section 100.1 of the Criminal Code.
agency means:
(a) except in Chapter 2—an interception agency or another enforcement agency; or
(b) in Chapter 2—an interception agency.
ancillary offence means an offence constituted by:
(a) aiding, abetting, counselling or procuring the commission of an offence;
(b) being, by act or omission, in any way, directly or indirectly, knowingly concerned in, or party to, the commission of an offence;
(c) receiving or assisting a person who is, to the offender’s knowledge, guilty of an offence, in order to enable the person to escape punishment or to dispose of the proceeds of the last‑mentioned offence;
(d) attempting or conspiring to commit an offence; or
(e) inciting, urging, aiding or encouraging, or printing or publishing any writing that incites, urges, aids or encourages, the commission of an offence or the carrying on of any operations for or by the commission of an offence.
appropriately used, in relation to a computer network that is operated by, or on behalf of, a Commonwealth agency, security authority or eligible authority of a State, has the meaning given by section 6AAA.
ASIC means the Australian Securities and Investments Commission.
ASIO affiliate has the same meaning as in the Australian Security Intelligence Organisation Act 1979.
ASIO computer access intercept information means information obtained under:
(a) an ASIO computer access warrant; or
(b) subsection 25A(8) of the Australian Security Intelligence Organisation Act 1979; or
(c) subsection 27A(3C) of the Australian Security Intelligence Organisation Act 1979; or
(d) an authorisation under section 27E of the Australian Security Intelligence Organisation Act 1979; or
(e) subsection 27E(6) of the Australian Security Intelligence Organisation Act 1979;
by intercepting a communication passing over a telecommunications system.
ASIO computer access warrant means:
(a) a warrant issued under section 25A of the Australian Security Intelligence Organisation Act 1979; or
(b) a warrant issued under section 27A of the Australian Security Intelligence Organisation Act 1979 that authorises the Organisation to do any of the acts or things referred to in subsection 25A(4) or (8) of that Act; or
(c) an authorisation under section 27E of the Australian Security Intelligence Organisation Act 1979.
ASIO employee has the same meaning as in the Australian Security Intelligence Organisation Act 1979.
associate, with a criminal organisation or a member of such an organisation, includes:
(a) be in the company of the organisation or member; and
(b) communicate with the organisation or member by any means (including by post, fax, telephone, or by email or other electronic means).
Australian Capital Territory includes the Jervis Bay Territory.
authorised officer:
(a) in sections 180A, 180B, 180C and 180D, subsections 184(5) and 185(2) and paragraph 186(1)(ca), means:
(i) the Commissioner of Police; or
(ii) a Deputy Commissioner of Police; or
(iii) a member of the Australian Federal Police who is covered by an authorisation in force under subsection 5AB(1A); and
(b) in any other case, means:
(i) the head (however described) of the enforcement agency or a person acting as that head; or
(ii) a deputy head (however described) of the enforcement agency or a person acting as that deputy head; or
(iii) a person who holds, or is acting in, an office or position in the enforcement agency that is covered by an authorisation in force under subsection 5AB(1).
authorised representative of a carrier means one of the following persons:
(a) the Managing Director of the carrier;
(b) the secretary of the carrier;
(c) an employee of the carrier authorised in writing for the purposes of this paragraph by the Managing Director or the secretary of the carrier.
authority, in relation to a State, includes:
(a) a Minister of that State;
(b) an officer of that State;
(c) an authority or body established for a public purpose by or under a law of that State; and
(d) without limiting the generality of paragraph (c), the Police Force of that State.
Board of the ACC means the Board of the Australian Crime Commission established under section 7B of the ACC Act.
carriage service provider has the meaning given by the Telecommunications Act 1997.
carrier means:
(a) except in Parts 5‑4 and 5‑4A:
(i) a carrier (within the meaning of the Telecommunications Act 1997); or
(ii) a carriage service provider; and
(b) in Parts 5‑4 and 5‑4A—a carrier (within the meaning of the Telecommunications Act 1997).
carry includes transmit, switch and receive.
certifying officer, in relation to an agency, or an eligible authority of a State, means:
(a) in the case of the Australian Federal Police—the Commissioner of Police, a Deputy Commissioner of Police or a person authorised to be a certifying officer of the Australian Federal Police under subsection 5AC(1); or
(aa) in the case of the National Anti‑Corruption Commission:
(i) the National Anti‑Corruption Commissioner; or
(ii) a National Anti‑Corruption Deputy Commissioner; or
(iii) a person authorised to be a certifying officer of the National Anti‑Corruption Commission under subsection 5AC(2); or
(b) in the case of the ACC:
(i) the Chief Executive Officer of the ACC or an examiner; or
(ii) a person authorised to be a certifying officer of the ACC under subsection 5AC(3); or
(c) in the case of the Police Force of a State—the Commissioner, a Deputy Commissioner, an officer whose rank is equivalent to that of Assistant Commissioner of the Australian Federal Police, or a person authorised to be a certifying officer of the Police Force of the State under subsection 5AC(4); or
(d) in the case of the Crime Commission:
(i) a member of the Crime Commission; or
(ii) a person authorised to be a certifying officer of the Crime Commission under subsection 5AC(5); or
(e) in the case of the Independent Commission Against Corruption:
(i) the Chief Commissioner, a Commissioner or an Assistant Commissioner of the Independent Commission Against Corruption; or
(ii) a person authorised to be a certifying officer of the Independent Commission Against Corruption under subsection 5AC(6); or
(ea) in the case of the IBAC:
(i) the Commissioner of the IBAC; or
(ii) the Deputy Commissioner of the IBAC; or
(iii) a person authorised to be a certifying officer of the IBAC under subsection 5AC(7); or
(f) in the case of the Crime and Corruption Commission:
(i) the chairman (as defined by the Crime and Corruption Act); or
(ii) a senior executive officer (as defined by the Crime and Corruption Act); or
(g) in the case of the Law Enforcement Conduct Commission:
(i) the Chief Commissioner of the Commission; or
(ii) the Commissioner for Integrity of the Commission; or
(iii) a person authorised to be a certifying officer of the Commission under subsection 5AC(8); or
(i) in the case of the Corruption and Crime Commission:
(i) the Commissioner of the Corruption and Crime Commission; or
(ii) a person authorised to be a certifying officer of the Corruption and Crime Commission under subsection 5AC(9); or
(ia) in the case of the Independent Commissioner Against Corruption:
(i) the Independent Commissioner Against Corruption; or
(ii) the Deputy Commissioner referred to in section 9 of the Independent Commissioner Against Corruption Act; or
(iii) a person authorised to be a certifying officer for the Independent Commissioner Against Corruption under subsection 5AC(9A); or
(j) in the case of any other agency:
(i) the chief executive officer or an acting chief executive officer of the agency; or
(ii) a person authorised to be a certifying officer of the agency under subsection 5AC(10).
certifying official, of an issuing agency, means:
(a) if the issuing agency is an enforcement agency (including an interception agency)—a certifying officer of the agency; and
(b) if the issuing agency is the Organisation—a certifying person of the Organisation.
certifying person means any of the following:
(a) the Director‑General of Security;
(b) a Deputy Director‑General of Security;
(c) a person authorised to be a certifying person of the Organisation under section 5AD.
chief officer, in relation to an agency, an eligible Commonwealth authority or an eligible authority of a State, means:
(a) in the case of the Australian Federal Police—the Commissioner of Police; or
(aa) in the case of the National Anti‑Corruption Commission—the National Anti‑Corruption Commissioner; or
(b) in the case of the ACC—the Chief Executive Officer of the ACC; or
(ba) in the case of an eligible Commonwealth authority—the member constituting, or the member who generally presides at hearings and other meetings of, the Commonwealth Royal Commission concerned; or
(c) in the case of the Police Force of a State—the Commissioner of that Police Force; or
(d) in the case of the Crime Commission—the Commissioner of the Crime Commission; or
(e) in the case of the Independent Commission Against Corruption—the Chief Commissioner of the Independent Commission Against Corruption; or
(ea) in the case of the Inspector of the Independent Commission Against Corruption—the Inspector of the Independent Commission Against Corruption; or
(eb) in the case of the IBAC—the Commissioner of the IBAC; or
(ec) in the case of the Victorian Inspectorate—the Inspector of the Victorian Inspectorate; or
(f) in the case of the Crime and Corruption Commission—the chairman of the Commission; or
(h) in the case of the Law Enforcement Conduct Commission—the Chief Commissioner of the Commission; or
(ha) in the case of the Inspector of the Law Enforcement Conduct Commission—the Inspector; or
(k) in the case of the Corruption and Crime Commission—the Commissioner of the Commission; or
(l) in the case of the Parliamentary Inspector of the Corruption and Crime Commission—the Parliamentary Inspector of the Corruption and Crime Commission; or
(la) in the case of the Independent Commissioner Against Corruption—the Independent Commissioner Against Corruption; or
(m) in the case of an enforcement agency that is not an interception agency and is not an eligible authority of a State—the chief executive officer or an acting chief executive officer of the agency.
Commissioner means:
(a) in relation to the Police Force of a State—the Commissioner of Police (however designated) of that State; or
(b) in relation to the Crime and Corruption Commission—a member of the Commission, including the chairman.
Commissioner of Police means the Commissioner of Police referred to in section 6 of the Australian Federal Police Act 1979, and includes an acting Commissioner of Police.
Commonwealth agency means:
(a) the Australian Federal Police; or
(aa) the National Anti‑Corruption Commission; or
(b) the ACC.
Commonwealth Royal Commission means a Royal Commission within the meaning of the Royal Commissions Act 1902.
communicate, in relation to information, includes divulge.
communication includes conversation and a message, and any part of a conversation or message, whether:
(a) in the form of:
(i) speech, music or other sounds;
(ii) data;
(iii) text;
(iv) visual images, whether or not animated; or
(v) signals; or
(b) in any other form or in any combination of forms.
Communications Access Co‑ordinator has the meaning given by section 6R.
conduct includes any act or omission.
confirmed control order has the same meaning as in Part 5.3 of the Criminal Code.
connected with: a purpose is connected with a preventative detention order law if the purpose is connected with the performance of a function or duty, or the exercise of a power, by a person, court, tribunal or other body under, or in relation to a matter arising under, that law, so far as the function, duty or power relates to a preventative detention order (within the meaning of that law).
control order has the same meaning as in Part 5.3 of the Criminal Code.
Corruption and Crime Commission means the Corruption and Crime Commission established by the Corruption and Crime Commission Act.
Corruption and Crime Commission Act means the Corruption and Crime Commission Act 2003 of Western Australia.
Crime and Corruption Act means the Crime and Corruption Act 2001 (Qld).
Crime and Corruption Commission means the Crime and Corruption Commission (Qld).
Crime Commission means the New South Wales Crime Commission.
Crime Commission Act means the New South Wales Crime Commission Act 1985 of New South Wales.
crime within the jurisdiction of the ICC has the same meaning as in the International Criminal Court Act 2002.
criminal law‑enforcement agency has the meaning given by section 110A.
criminal organisation means an organisation (whether incorporated or not, and however structured) that is:
(a) a declared organisation within the meaning of:
(i) the Crimes (Criminal Organisations Control) Act 2009 of New South Wales; or
(ii) the Serious and Organised Crime (Control) Act 2008 of South Australia; or
(b) an organisation of a kind specified by or under, or described or mentioned in, a prescribed provision of a law of a State or Territory.
data disruption intercept information means information obtained under a data disruption warrant by intercepting a communication passing over a telecommunications system.
data disruption warrant has the same meaning as in the Surveillance Devices Act 2004.
Defence Minister has the same meaning as in the Intelligence Services Act 2001.
delivery point means a location in respect of which a nomination or determination is in force under section 188.
Deputy Commissioner of Police means a Deputy Commissioner of Police referred to in section 6 of the Australian Federal Police Act 1979.
Deputy Director‑General of Security means a person who holds, or is acting in, a position known as Deputy Director‑General of Security.
deputy PIM (short for deputy public interest monitor), in relation to Queensland, means a person appointed as a deputy public interest monitor under:
(a) the Crime and Corruption Act 2001 of Queensland; or
(b) the Police Powers and Responsibilities Act 2000 of Queensland.
detained in custody in a prison has the meaning given by section 100.1 of the Criminal Code.
Director‑General of Security means the person holding, or performing the duties of, the office of Director‑General of Security under the Australian Security Intelligence Organisation Act 1979.
domestic preservation notice has the meaning given by subsection 107H(1).
earth‑based facility means a facility other than a satellite‑based facility.
eligible authority, in relation to a State, means:
(a) in any case—the Police Force of that State; or
(b) in the case of New South Wales:
(i) the Crime Commission; or
(ii) the Independent Commission Against Corruption; or
(iii) the Inspector of the Independent Commission Against Corruption; or
(iv) the Law Enforcement Conduct Commission; or
(v) the Inspector of the Law Enforcement Conduct Commission; or
(ba) in the case of Victoria—the IBAC or the Victorian Inspectorate; or
(c) in the case of Queensland—the Crime and Corruption Commission; or
(d) in the case of Western Australia—the Corruption and Crime Commission or the Parliamentary Inspector of the Corruption and Crime Commission; or
(e) in the case of South Australia—the Independent Commissioner Against Corruption.
eligible Commonwealth authority means a Commonwealth Royal Commission in relation to which a declaration under section 5AA is in force.
emergency service facility has the meaning given by subsection 6(2A).
enforcement agency has the meaning given by section 176A.
engage in a hostile activity has the same meaning as in Part 5.3 of the Criminal Code.
equipment means any apparatus or equipment used, or intended for use, in or in connection with a telecommunications network, and includes a telecommunications device but does not include a line. This definition does not apply to Schedule 1.
examiner has the same meaning as in the ACC Act.
extended supervision order has the meaning given by section 105A.2 of the Criminal Code.
facility has the same meaning as in the Telecommunications Act 1997.
Foreign Affairs Minister has the same meaning as in the Intelligence Services Act 2001.
foreign communication means a communication sent or received outside Australia.
foreign communications warrant means an interception warrant issued or to be issued under section 11C.
foreign country, when used in the expression hostile activity in a foreign country, has the same meaning as in the Criminal Code.
foreign intelligence means intelligence about the capabilities, intentions or activities of people or organisations outside Australia.
foreign intelligence information means information obtained (whether before or after the commencement of this definition) under a warrant issued under section 11A, 11B or 11C.
foreign law enforcement agency means:
(a) a police force (however described) of a foreign country; or
(b) any other authority or person responsible for the enforcement of the laws of the foreign country; or
(c) any other authority or person responsible to the International Criminal Court for investigating or prosecuting a crime within the jurisdiction of the ICC; or
(d) any other authority or person responsible to a War Crimes Tribunal for investigating or prosecuting a War Crimes Tribunal offence.
foreign organisation means an organisation (including a government) outside Australia.
foreign power has the same meaning as in the Australian Security Intelligence Organisation Act 1979.
foreign preservation notice has the meaning given by subsection 107N(1).
general computer access intercept information means information obtained under a general computer access warrant by intercepting a communication passing over a telecommunications system.
general computer access warrant means a warrant issued under section 27C of the Surveillance Devices Act 2004.
General Register means the General Register of Warrants kept under section 81A.
Governor, in relation to a State, means, in the case of the Northern Territory, the Administrator of the Northern Territory.
historic domestic preservation notice has the meaning given by subparagraph 107H(1)(b)(i).
IBAC means the Independent Broad‑based Anti‑corruption Commission established by the IBAC Act.
IBAC Act means the Independent Broad‑based Anti‑corruption Commission Act 2011 of Victoria.
IBAC officer means a person who is an IBAC Officer (within the meaning of the IBAC Act).
IGIS official has the same meaning as in the Australian Security Intelligence Organisation Act 1979.
Immigration and Border Protection Department means the Department administered by the Minister administering Part XII of the Customs Act 1901.
immigration offence means an offence against section 236 of the Migration Act 1958.
implementation phase has the meaning given by subsection 187H(2).
Independent Commission Against Corruption means the Independent Commission Against Corruption of New South Wales.
Independent Commission Against Corruption Act means the Independent Commission Against Corruption Act 1988 of New South Wales.
Independent Commissioner Against Corruption means the person who is the Commissioner (within the meaning of the Independent Commissioner Against Corruption Act).
Independent Commissioner Against Corruption Act means the Independent Commissioner Against Corruption Act 2012 of South Australia.
infrastructure means any line or equipment used to facilitate communications across a telecommunications network.
inspecting officer means:
(a) the Ombudsman;
(b) a Deputy Commonwealth Ombudsman; or
(c) a member of the staff referred to in subsection 31(1) of the Ombudsman Act 1976.
Inspector of the Independent Commission Against Corruption means the Inspector of the Independent Commission Against Corruption referred to in section 57A of the Independent Commission Against Corruption Act.
Inspector of the Law Enforcement Conduct Commission has the same meaning as Inspector has in the Law Enforcement Conduct Commission Act 2016 (NSW).
Inspector of the National Anti‑Corruption Commission means the Inspector within the meaning of the National Anti‑Corruption Commission Act 2022.
Inspector of the Victorian Inspectorate has the same meaning as Inspector has in the Victorian Inspectorate Act.
integrity authority means:
(a) an integrity testing controlled operations authority under Part IAB of the Crimes Act 1914 authorising a controlled operation under that Part; or
(b) an integrity testing authority under Part IABA of the Crimes Act 1914 authorising an integrity testing operation under that Part.
integrity operation means:
(a) a controlled operation authorised by an integrity testing controlled operation authority granted under Part IAB of the Crimes Act 1914; or
(b) an integrity testing operation authorised by an integrity testing authority granted under Part IABA of the Crimes Act 1914.
intended recipient, of a communication, (except when used in Schedule 1) has the meaning given by section 5G.
interception agency means:
(a) except for the purposes of section 6R, Part 2‑6 or Chapter 5:
(i) a Commonwealth agency; or
(ii) an eligible authority of a State in relation to which a declaration under section 34 is in force; or
(b) for the purposes of Part 2‑6:
(i) a Commonwealth agency; or
(ii) an eligible authority of a State; or
(c) for the purposes of section 6R and Chapter 5:
(i) the Organisation; or
(ii) a Commonwealth agency; or
(iii) an eligible authority of a State in relation to which a declaration under section 34 is in force.
interception warrant means a warrant issued under Chapter 2.
interception warrant information has the meaning given by section 6EA.
interim control order has the same meaning as in Part 5.3 of the Criminal Code.
interim supervision order has the meaning given by section 105A.2 of the Criminal Code.
international assistance application means an application for a stored communications warrant made as a result of:
(a) an authorisation under section 15B of the Mutual Assistance in Criminal Matters Act 1987; or
(b) an authorisation under section 78A of the International Criminal Court Act 2002; or
(c) an authorisation under section 34A of the International War Crimes Tribunals Act 1995.
International Criminal Court has the same meaning as ICC in the International Criminal Court Act 2002.
international offence has the meaning given by subsection 162(3).
in the possession of, in relation to a document, record or copy, includes in the custody of or under the control of.
investigative proceeding has the same meaning as in the Mutual Assistance in Criminal Matters Act 1987.
issuing agency, in relation to a preservation notice, means the agency that gives the notice.
issuing authority (except when used in Schedule 1) means a person:
(a) in respect of whom an appointment is in force under section 6DB; and
(b) in relation to a warrant applied for by the National Anti‑Corruption Commission—who is a superior Court Judge.
journalist information warrant means a warrant issued under Division 4C of Part 4‑1.
Law Enforcement Conduct Commission means the Law Enforcement Conduct Commission constituted by the Law Enforcement Conduct Commission Act 2016 (NSW).
lawfully accessed information means information obtained by accessing a stored communication otherwise than in contravention of subsection 108(1), but does not include information obtained in accordance with an international production order (within the meaning of Schedule 1).
lawfully intercepted information has the meaning given by section 6E.
law of the Commonwealth includes a law of the Australian Capital Territory.
line has the same meaning as in the Telecommunications Act 1997.
listening device has the same meaning as in Division 2 of Part III of the Australian Security Intelligence Organisation Act 1979.
maintain includes adjust and repair.
main unexplained wealth provisions has the same meaning as in the Proceeds of Crime Act 2002.
Managing Director, in relation to a carrier, means the chief executive officer (however described) of the carrier.
member, of a criminal organisation, includes:
(a) in the case of an organisation that is a body corporate—a director and an officer of the body corporate; and
(b) in any case:
(i) an associate member or prospective member (however described) of the organisation; and
(ii) a person who identifies himself or herself, in some way, as belonging to the organisation; and
(iii) a person who is treated by the organisation or persons who belong to the organisation, in some way, as if he or she belongs to the organisation.
member of a police force means:
(a) a member of the Australian Federal Police; or
(b) an officer of the Police Force of a State or Territory.
member of the Australian Federal Police includes a special member of the Australian Federal Police.
member of the Crime Commission means a person who is, or who is acting in the office of, the Chairperson, or a member, of the Crime Commission.
member of the staff of a Commonwealth Royal Commission means:
(a) a legal practitioner appointed to assist the Commission; or
(b) a person authorised to be a member of the staff of a Commonwealth Royal Commission for the purposes of this Act under section 5AE.
member of the staff of the ACC has the same meaning as in the ACC Act.
member of the staff of the Crime Commission means a person who is, for the purposes of the Crime Commission Act, a member of the staff of the Crime Commission.
member of the staff of the Independent Commissioner Against Corruption means a person who is engaged under subsection 12(1) of the Independent Commissioner Against Corruption Act.
member of the staff of the Inspector of the Independent Commission Against Corruption means:
(a) a member of the staff referred to in subsection 57E(1) or (2) of the Independent Commission Against Corruption Act; or
(b) a person engaged under subsection 57E(3) of that Act; or
(c) a person whose services are used under subsection 57E(4) of that Act.
member of the staff of the Inspector of the Law Enforcement Conduct Commission means a member of staff of the Inspector (within the meaning of the Law Enforcement Conduct Commission Act 2016 (NSW)).
member of the staff of the Law Enforcement Conduct Commission means a member of staff of the Commission (within the meaning of the Law Enforcement Conduct Commission Act 2016 (NSW)).
Minister, in relation to a State, means:
(a) except where paragraph (b) applies—a Minister of the Crown of that State; or
(b) in the case of the Northern Territory—a person holding Ministerial office within the meaning of the Northern Territory (Self‑Government) Act 1978.
Minister for Defence means the Minister administering the Defence Act 1903.
Minister for Foreign Affairs means the Minister administering the Diplomatic Privileges and Immunities Act 1967.
missing person information, in relation to a missing person, has the meaning given by section 182.
named person warrant means an interception warrant issued or to be issued under section 9A, 11B or 46A.
National Anti‑Corruption Commissioner means the Commissioner within the meaning of the National Anti‑Corruption Commission Act 2022.
National Anti‑Corruption Deputy Commissioner means a Deputy Commissioner within the meaning of the National Anti‑Corruption Commission Act 2022.
network activity warrant has the same meaning as in the Surveillance Devices Act 2004.
network activity warrant intercept information means information obtained under a network activity warrant by intercepting a communication passing over a telecommunications system.
network protection duties, in relation to a computer network, means duties relating to:
(a) the operation, protection or maintenance of the network; or
(b) if the network is operated by, or on behalf of, a Commonwealth agency, security authority or eligible authority of a State—ensuring that the network is appropriately used by employees, office holders or contractors of the agency or authority.
nominated AAT member (except when used in Schedule 1) means a member of the Administrative Appeals Tribunal in respect of whom a nomination is in force under section 6DA to issue warrants under Part 2‑5.
nominated carriage service provider means a carriage service provider covered by a declaration in force under subsection 197(4).
non‑missing person information has the meaning given by section 182.
notifiable equipment, in relation to a carrier or nominated carriage service provider, means equipment that:
(a) provides all or part of the carrier or provider’s telecommunication services; or
(b) manages all or part of the provision of the carrier or provider’s telecommunication services; or
(c) manages some or all of the information to which section 276 of the Telecommunications Act 1997 applies in relation to the carrier or provider.
oath includes affirmation.
offence means an offence against a law of the Commonwealth or of a State.
office holder means a person who holds, occupies or performs the duties of an office, position or appointment.
officer, in relation to an agency, an eligible Commonwealth authority or an eligible authority of a State, means:
(a) in the case of the Australian Federal Police—a member of the Australian Federal Police; or
(aa) in the case of the National Anti‑Corruption Commission—the National Anti‑Corruption Commissioner or another staff member of the NACC; or
(b) in the case of the ACC—the Chief Executive Officer of the ACC, an examiner or a member of the staff of the ACC; or
(ba) in the case of an eligible Commonwealth authority—a member of the Commonwealth Royal Commission concerned or a member of the staff of the Royal Commission; or
(c) in the case of the Police Force of a State—an officer of that Police Force; or
(d) in the case of the Crime Commission—a member of the Crime Commission or a member of the staff of the Crime Commission; or
(e) in the case of the Independent Commission Against Corruption—an officer of the Independent Commission Against Corruption, being a person who is an officer as defined by the Independent Commission Against Corruption Act; or
(ea) in the case of the Inspector of the Independent Commission Against Corruption:
(i) the Inspector of the Independent Commission Against Corruption; or
(ii) a member of the staff of the Inspector of the Independent Commission Against Corruption; or
(eb) in the case of the IBAC—an IBAC officer; or
(ec) in the case of the Victorian Inspectorate—a Victorian Inspectorate officer; or
(f) in the case of the Crime and Corruption Commission—a commission officer (within the meaning of the Crime and Corruption Act); or
(h) in the case of the Law Enforcement Conduct Commission:
(i) the Chief Commissioner of the Commission; or
(ii) the Commissioner for Integrity of the Commission; or
(iii) an Assistant Commissioner of the Commission; or
(iv) a member of the staff of the Law Enforcement Conduct Commission; or
(ha) in the case of the Inspector of the Law Enforcement Conduct Commission:
(i) the Inspector; or
(ii) an Assistant Inspector of the Commission; or
(iii) a member of the staff of the Inspector of the Law Enforcement Conduct Commission; or
(k) in the case of the Corruption and Crime Commission—an officer of the Corruption and Crime Commission; or
(l) in the case of the Parliamentary Inspector of the Corruption and Crime Commission—the Parliamentary Inspector of the Corruption and Crime Commission or an officer of the Parliamentary Inspector; or
(m) in the case of the Independent Commissioner Against Corruption:
(i) the Independent Commissioner Against Corruption; or
(ii) the Deputy Commissioner referred to in section 9 of the Independent Commissioner Against Corruption Act; or
(iii) a member of the staff of the Independent Commissioner Against Corruption; or
(n) in the case of a criminal law‑enforcement agency for which a declaration under subsection 110A(3) is in force—a person specified, or of a kind specified, in the declaration to be an officer of the criminal law‑enforcement agency for the purposes of this Act; or
(o) in the case of an enforcement agency for which a declaration under subsection 176A(3) is in force—a person specified, or of a kind specified, in the declaration to be an officer of the enforcement agency for the purposes of this Act.
officer of a State has the meaning given by subsection 6G(2).
officer of a Territory has the meaning given by subsection 6G(3).
officer of the Commonwealth has the meaning given by subsection 6G(1).
officer of the Corruption and Crime Commission means an officer of the Corruption and Crime Commission within the meaning of the Corruption and Crime Commission Act.
officer of the Parliamentary Inspector means an officer of the Parliamentary Inspector of the Corruption and Crime Commission within the meaning of the Corruption and Crime Commission Act.
Ombudsman means the Commonwealth Ombudsman.
Ombudsman official means:
(a) the Ombudsman; or
(b) a Deputy Commonwealth Ombudsman; or
(c) a person who is a member of the staff referred to in subsection 31(1) of the Ombudsman Act 1976.
ongoing domestic preservation notice has the meaning given by subparagraph 107H(1)(b)(ii).
Organisation means the Australian Security Intelligence Organisation.
organised crime control law means a law of a State, a purpose of which is to combat organised crime or restrict the activities of criminal organisations, that provides for:
(a) the declaration of an organisation as a declared organisation; or
(b) the making of orders described as control orders or interim control orders in relation to members of criminal organisations.
original warrant means a warrant other than a renewal of a warrant.
Parliamentary Inspector of the Corruption and Crime Commission means the Parliamentary Inspector of the Corruption and Crime Commission within the meaning of the Corruption and Crime Commission Act.
Part 2‑2 warrant means a warrant issued under Part 2‑2.
Part 2‑5 warrant means a warrant issued under Part 2‑5.
Part 4‑1 issuing authority means a person:
(a) in respect of whom an appointment is in force under section 6DC; and
(b) in relation to a warrant applied for by the National Anti‑Corruption Commission—who is a superior Court Judge.
Part 5.3 object means:
(a) in relation to a control order—any of the following:
(i) the protection of the public from a terrorist act;
(ii) the prevention of the provision of support for, or the facilitation of, a terrorist act;
(iii) the prevention of the provision of support for, or the facilitation of, the engagement in a hostile activity in a foreign country; or
(b) in relation to an extended supervision order or interim supervision order—the protection of the community from the unacceptable risk of a terrorist offender committing a serious Part 5.3 offence.
Part 5.3 supervisory order means:
(a) a control order; or
(b) an extended supervision order or interim supervision order.
Part 5.3 warrant means a warrant issued:
(a) under subsection 46(4) or (7) or 46A(2A) or (2C); or
(b) under section 48 in the circumstances mentioned in subsection 46(4) or (7).
Part 5.3 warrant agency means:
(a) a Commonwealth agency; or
(b) an eligible authority of a State that a declaration in force under section 34 authorises to apply for Part 5.3 warrants (see section 38A).
participating State has the same meaning as in the Proceeds of Crime Act 2002.
passing over includes being carried.
Note: See section 5F for when a communication is passing over a telecommunications system.
permitted purpose, in relation to an interception agency, the Immigration and Border Protection Department, an eligible Commonwealth authority, an eligible authority of a State, ASIC or the Inspector of the National Anti‑Corruption Commission, means a purpose connected with:
(a) in any case (except in the case of the Immigration and Border Protection Department or ASIC):
(i) an investigation by the agency or eligible authority of a prescribed offence;
(ii) the making by an authority, body or person of a decision whether or not to begin a relevant proceeding in relation to the agency or eligible authority;
(iii) a relevant proceeding in relation to the agency or eligible authority;
(iv) the exercise by the chief officer of the agency or eligible authority of the powers conferred by section 68; or
(v) the keeping of records by the agency under Part 2‑7, or by the eligible authority under provisions of a law of the State that impose on the chief officer of the authority requirements corresponding to those imposed on the chief officer of a Commonwealth agency by sections 80 and 81; or
(aaa) in the case of a Commonwealth agency or the Immigration and Border Protection Department—a purpose mentioned in the table in section 6S in relation to the agency or the Immigration and Border Protection Department; or
(aa) in the case of the ACC:
(i) a special ACC operation/investigation; or
(ii) a report to the Board of the ACC on the outcome of such an operation or investigation; or
(iii) an investigation of, or an inquiry into, alleged misbehaviour, or alleged improper conduct, of a member of the staff referred to in subsection 47(1) of the Australian Crime Commission Act 2002; or
(iv) a report on such an investigation or inquiry; or
(v) the making by a person of a decision, following such an investigation or inquiry, in relation to the employment of such a staff member (including a decision to terminate the staff member’s employment); or
(vi) a review (whether by way of appeal or otherwise) of such a decision; or
(b) in the case of the Australian Federal Police:
(i) an investigation of, or an inquiry into, alleged misbehaviour, or alleged improper conduct, of an officer of the Commonwealth, being an investigation or inquiry under a law of the Commonwealth or by a person in the person’s capacity as an officer of the Commonwealth; or
(ii) a report on such an investigation or inquiry; or
(iia) the making by a person of a decision under the Australian Federal Police Act 1979 in relation to the engagement of an AFP employee, the retirement of an AFP employee or the termination of the employment of an AFP employee or in relation to the appointment or the termination of the appointment of a special member of the Australian Federal Police; or
(iib) a review (whether by way of appeal or otherwise) of such a decision; or
(iii) the tendering to the Governor‑General of advice to terminate, because of misbehaviour or improper conduct, the appointment of an officer of the Commonwealth; or
(iv) deliberations of the Executive Council in connection with advice to the Governor‑General to terminate, because of misbehaviour or improper conduct, the appointment of an officer of the Commonwealth; or
(v) the performance of a function or duty, or the exercise of a power, by a person, court or other body under, or in relation to a matter arising under, Division 104 (control orders) or Division 105A (post‑sentence orders) of the Criminal Code; or
(vi) a preventative detention order law; or
(vii) a post‑sentence detention law or a post‑sentence supervision law; or
(viii) the making of a decision whether to apply for a post‑sentence order, or for a variation or review of a post‑sentence order, under Division 105A of the Criminal Code in relation to a person; or
(ix) the making of a decision whether to apply for an order, or make any other application in relation to an order, under a post‑sentence detention law or a post‑sentence supervision law in relation to a person; or
(baa) in the case of the National Anti‑Corruption Commission:
(i) a corruption investigation or NACC corruption investigation (within the meaning of the National Anti‑Corruption Commission Act 2022); or
(ii) a report on such an investigation; or
(bab) in the case of the Inspector of the National Anti‑Corruption Commission:
(i) a NACC corruption investigation (within the meaning of the National Anti‑Corruption Commission Act 2022); or
(ii) a report on such an investigation; or
(ba) in the case of an eligible Commonwealth authority:
(i) an investigation that the Commonwealth Royal Commission concerned is conducting in the course of the inquiry it is commissioned to undertake; or
(ii) a report on such an investigation; or
(c) in the case of the Police Force of a State:
(i) an investigation of, or an inquiry into, alleged misbehaviour, or alleged improper conduct, of an officer of that State, being an investigation or inquiry under a law of that State or by a person in the person’s capacity as an officer of that State; or
(ii) a report on such an investigation or inquiry; or
(iia) the making by a person of a decision in relation to the appointment, re‑appointment, term of appointment, retirement or termination of appointment of an officer or member of staff of that Police Force; or
(iib) a review (whether by way of appeal or otherwise) of such a decision; or
(iii) the tendering to the Governor of that State of advice to terminate, because of misbehaviour or improper conduct, the appointment of an officer of that State; or
(iv) deliberations of the Executive Council of that State in connection with advice to the Governor of that State to terminate, because of misbehaviour or improper conduct, the appointment of an officer of that State; or
(v) the performance of a function or duty, or the exercise of a power, by a person, court or other body under, or in relation to a matter arising under, an organised crime control law of that State; or
(vi) the performance of a function or duty, or the exercise of a power, by a person, court or other body under, or in relation to a matter arising under, Division 104 (control orders) or Division 105A (post‑sentence orders) of the Criminal Code; or
(vii) a preventative detention order law; or
(viii) a post‑sentence detention law or a post‑sentence supervision law; or
(ix) the making of a decision whether to apply for a post‑sentence order, or for a variation or review of a post‑sentence order, under Division 105A of the Criminal Code in relation to a person; or
(x) the making of a decision whether to apply for an order, or make any other application in relation to an order, under a post‑sentence detention law or a post‑sentence supervision law in relation to a person; or
(d) in the case of an eligible authority of a State:
(i) an inspection of the authority’s records that is made under a requirement of the law of that State, being a requirement of the kind referred to in paragraph 35(1)(h); or
(ii) a report on such an inspection; or
(da) in the case of the Independent Commission Against Corruption:
(i) an investigation under the Independent Commission Against Corruption Act into whether corrupt conduct (within the meaning of that Act) may have occurred, may be occurring or may be about to occur; or
(ii) a report on such an investigation; or
(db) in the case of the Inspector of the Independent Commission Against Corruption:
(i) dealing with (by reports and recommendations) complaints of abuse of power, impropriety or other forms of misconduct (within the meaning of the Independent Commission Against Corruption Act) on the part of the Independent Commission Against Corruption or officers of that Commission; or
(ii) dealing with (by reports and recommendations) conduct amounting to maladministration (within the meaning of the Independent Commission Against Corruption Act) by the Independent Commission Against Corruption or officers of that Commission; or
(dc) in the case of the Inspector of the Law Enforcement Conduct Commission—dealing with (by reports and recommendations) conduct amounting to:
(i) agency maladministration (within the meaning of subsection (6A)) on the part of the Commission; or
(ii) officer misconduct (within the meaning of section 122 of the Law Enforcement Conduct Commission Act 2016 (NSW)) or officer maladministration (within the meaning of that section) on the part of officers (within the meaning of that Act) of the Commission;
whether or not the subject of a complaint; or
(e) in the case of the Law Enforcement Conduct Commission:
(i) an investigation under Part 6 of the Law Enforcement Conduct Commission Act 2016 (NSW) in respect of conduct to which subsection (7) of this section applies; or
(ii) a report on an investigation covered by subparagraph (i); or
(iii) the tendering to the Governor of New South Wales of advice to terminate, because of misbehaviour or improper conduct, the appointment of the Commissioner of the New South Wales Police Force; or
(iv) deliberations of the Executive Council of New South Wales in connection with advice to the Governor of that State to terminate, because of misbehaviour or improper conduct, the appointment of the Commissioner of the New South Wales Police Force; or
(f) in the case of the IBAC:
(i) an investigation under the IBAC Act of corrupt conduct (within the meaning of that Act); or
(ii) an investigation under the IBAC Act of police personnel conduct (within the meaning of that Act); or
(iii) a report or recommendation on an investigation covered by subparagraph (i) or (ii); or
(fa) in the case of the Victorian Inspectorate:
(i) an investigation under the Victorian Inspectorate Act into the conduct of the IBAC or IBAC personnel (within the meaning of that Act); or
(ii) a report or recommendation on such an investigation; or
(g) in the case of the Corruption and Crime Commission:
(i) an investigation under the Corruption and Crime Commission Act into whether misconduct (within the meaning of that Act) has or may have occurred, is or may be occurring, is or may be about to occur, or is likely to occur; or
(ii) a report on such an investigation; or
(ga) in the case of the Crime and Corruption Commission:
(i) an investigation under the Crime and Corruption Act into whether corruption (within the meaning of that Act) may have occurred, may be occurring or may be about to occur; or
(ii) a report on such an investigation; or
(h) in the case of the Parliamentary Inspector of the Corruption and Crime Commission—dealing with a matter of misconduct (within the meaning of the Corruption and Crime Commission Act) on the part of the Corruption and Crime Commission, an officer of the Corruption and Crime Commission or an officer of the Parliamentary Inspector of the Corruption and Crime Commission; or
(i) in the case of the Independent Commissioner Against Corruption:
(i) an investigation under the Independent Commissioner Against Corruption Act into corruption in public administration (within the meaning of that Act); or
(ii) a report on such an investigation; or
(j) in the case of ASIC:
(i) an investigation by ASIC of a serious offence or of the likely commission of a serious offence; or
(ii) a report on such an investigation; or
(iii) the making of a decision whether or not to begin a prosecution for a serious offence if the prosecution arises from or relates to such an investigation; or
(iv) a prosecution for a serious offence if the prosecution arises from or relates to such an investigation.
person assisting the NACC Inspector means a person assisting the Inspector within the meaning of the National Anti‑Corruption Commission Act 2022.
PIM (short for public interest monitor) means:
(a) in relation to Victoria—a person appointed as a Public Interest Monitor under the Public Interest Monitor Act 2011 of Victoria; or
(b) in relation to Queensland—a person appointed as the public interest monitor under:
(i) the Crime and Corruption Act 2001 of Queensland; or
(ii) the Police Powers and Responsibilities Act 2000 of Queensland.
police disciplinary proceeding means a disciplinary proceeding, before a tribunal or body that is responsible for disciplining members of the Australian Federal Police or officers of a Police Force of a State, against a member of the Australian Federal Police, or an officer of that Police Force, as the case may be, not being a proceeding by way of a prosecution for an offence.
post‑sentence detention law means any of the following laws:
(a) Part 3 of the Terrorism (High Risk Offenders) Act 2017 (NSW);
(b) Parts 5 and 6 of the Serious Offenders Act 2018 (Vic.);
(c) Part 3 of the Criminal Law (High Risk Offenders) Act 2015 (SA);
(d) any other law, or part of a law, of a State or Territory prescribed by the regulations.
post‑sentence order means:
(a) a continuing detention order or interim detention order made under Division 105A of the Criminal Code; or
(b) an extended supervision order or interim supervision order.
post‑sentence supervision law means any of the following laws:
(a) Part 2 of the Terrorism (High Risk Offenders) Act 2017 (NSW);
(b) Parts 3 and 4 of the Serious Offenders Act 2018 (Vic.);
(c) Part 2 of the Criminal Law (High Risk Offenders) Act 2015 (SA);
(d) any other law, or part of a law, of a State or Territory prescribed by the regulations.
Premier, in relation to a State, means, in the case of the Northern Territory, the Chief Minister of the Northern Territory.
premises includes:
(a) any land;
(b) any structure, building, aircraft, vehicle, vessel or place (whether built on or not); and
(c) any part of such a structure, building, aircraft, vehicle, vessel or place.
prescribed investigation, in relation to a Commonwealth agency, an eligible Commonwealth authority or an eligible authority of a State:
(aa) in the case of the National Anti‑Corruption Commission—means a corruption investigation or NACC corruption investigation (within the meaning of the National Anti‑Corruption Commission Act 2022); or
(a) in the case of the ACC—means a special ACC operation/investigation; or
(b) in the case of the Crime Commission—means an investigation that the Crime Commission is conducting in the performance of its functions under the Crime Commission Act; or
(ba) in the case of an eligible Commonwealth authority—an investigation that the Commonwealth Royal Commission concerned is conducting in the course of the inquiry it is commissioned to undertake; or
(c) in the case of the Independent Commission Against Corruption—means an investigation that the Independent Commission Against Corruption is conducting in the performance of its functions under the Independent Commission Against Corruption Act; or
(ca) in the case of the Inspector of the Independent Commission Against Corruption—means an investigation that the Inspector is conducting in the performance of the Inspector’s functions under the Independent Commission Against Corruption Act; or
(cb) in the case of the IBAC—means an investigation that the IBAC is conducting in the performance of its functions under the IBAC Act; or
(cc) in the case of the Victorian Inspectorate—means an investigation that the Victorian Inspectorate is conducting in the performance of its functions under the Victorian Inspectorate Act; or
(d) in the case of the Crime and Corruption Commission—means an investigation that the Commission is conducting in the performance of its functions under the Crime and Corruption Act; or
(f) in the case of the Law Enforcement Conduct Commission—means an investigation that the Commission is conducting in the performance of its functions under the Law Enforcement Conduct Commission Act 2016 (NSW); or
(fa) in the case of the Inspector of the Law Enforcement Conduct Commission—means an investigation that the Inspector is conducting in the performance of the Inspector’s functions under the Law Enforcement Conduct Commission Act 2016 (NSW); or
(i) in the case of the Corruption and Crime Commission—means an investigation that the Commission is conducting in the performance of its functions under the Corruption and Crime Commission Act; or
(j) in the case of the Parliamentary Inspector of the Corruption and Crime Commission—means dealing with a matter of misconduct in the performance of the Parliamentary Inspector’s functions under the Corruption and Crime Commission Act; or
(k) in the case of the Independent Commissioner Against Corruption—means an investigation that the Independent Commissioner Against Corruption is conducting in the performance of the Commissioner’s functions under the Independent Commissioner Against Corruption Act.
prescribed offence means:
(a) a serious offence, or an offence that was a serious offence when the offence was committed;
(b) an offence against subsection 7(1) or section 63; or
(ba) an offence against subsection 108(1) or section 133; or
(c) an offence against a provision of Part 10.6 of the Criminal Code; or
(d) any other offence punishable by imprisonment for life or for a period, or maximum period, of at least 3 years; or
(e) an ancillary offence relating to an offence of a kind referred to in paragraph (a), (b), (c) or (d) of this definition.
prescribed substance means:
(a) a substance that is a narcotic drug or psychotropic substance for the purposes of the Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990; or
(b) a controlled drug or border controlled drug within the meaning of Part 9.1 of the Criminal Code; or
(c) a controlled plant or border controlled plant within the meaning of Part 9.1 of the Criminal Code; or
(d) a controlled precursor or border controlled precursor within the meaning of Part 9.1 of the Criminal Code.
preservation notice means a domestic preservation notice or a foreign preservation notice.
preservation notice information has the meaning given by section 6EAA.
preserve, in relation to a stored communication, means maintain the integrity of:
(a) the stored communication; or
(b) a copy of the stored communication.
preventative detention order law means:
(a) Division 105 of the Criminal Code; or
(b) Part 2A of the Terrorism (Police Powers) Act 2002 (NSW); or
(c) Part 2A of the Terrorism (Community Protection) Act 2003 (Vic.); or
(d) the Terrorism (Preventative Detention) Act 2005 (Qld); or
(e) the Terrorism (Preventative Detention) Act 2006 (WA); or
(f) the Terrorism (Preventative Detention) Act 2005 (SA); or
(g) the Terrorism (Preventative Detention) Act 2005 (Tas.); or
(h) Part 2 of the Terrorism (Extraordinary Temporary Powers) Act 2006 (ACT); or
(i) Part 2B of the Terrorism (Emergency Powers) Act (NT).
Note: For when a purpose is connected with a preventative detention order law, see the definition of connected with.
proceeding means:
(a) a proceeding or proposed proceeding in a federal court or in a court of a State or Territory;
(b) a proceeding or proposed proceeding, or a hearing or proposed hearing, before a tribunal in Australia, or before any other body, authority or person in Australia having power to hear or examine evidence; or
(c) an examination or proposed examination by or before such a tribunal, body, authority or person.
Public Interest Advocate means a person declared under section 180X to be a Public Interest Advocate.
publicly‑listed ASIO number has the meaning given by subsection 6(3).
record (except when used in Schedule 1) means:
(a) in relation to information—a record or copy, whether in writing or otherwise, of the whole or a part of the information; or
(b) in relation to an interception, whether or not in contravention of subsection 7(1), of a communication:
(i) a record or copy, whether in writing or otherwise, of the whole or a part of the communication, being a record or copy made by means of the interception; or
(ii) a record or copy, whether in writing or otherwise, of the whole or a part of a record or copy that is, by virtue of any other application or applications of this definition, a record obtained by the interception.
related account, service or device, in relation to a service to which Part 5‑1A applies, means:
(a) an account; or
(b) a telecommunications device; or
(c) another service of a kind referred to in paragraph 187A(3)(a);
that is related to the service.
relates:
(a) a stored communication relates to a person only if it is:
(i) a stored communication that the person has made; or
(ii) a stored communication that another person has made and for which the person is the intended recipient; and
(b) a stored communication relates to a telecommunications service only if it has passed over a telecommunications system by way of the telecommunications service.
relevant offence, in relation to a Commonwealth agency, an eligible Commonwealth authority or an eligible authority of a State, means:
(a) in the case of the Australian Federal Police—a prescribed offence that is an offence against a law of the Commonwealth; or
(aa) in the case of the National Anti‑Corruption Commission—a prescribed investigation concerning conduct that involves a prescribed offence or possible conduct that would involve a prescribed offence; or
(b) in the case of the ACC—a prescribed offence to which a prescribed investigation relates; or
(ba) in the case of an eligible Commonwealth authority—a prescribed offence to which a prescribed investigation relates; or
(c) in the case of the Police Force of a State—a prescribed offence that is an offence against a law of that State; or
(d) in the case of the Crime Commission—a prescribed offence that is an offence against a law of New South Wales and to which a prescribed investigation relates; or
(e) in the case of the Independent Commission Against Corruption—a prescribed offence that is an offence against a law of New South Wales and to which a prescribed investigation relates; or
(ea) in the case of the Inspector of the Independent Commission Against Corruption—a prescribed offence that is an offence against a law of New South Wales and to which a prescribed investigation relates; or
(eb) in the case of the IBAC—a prescribed offence that is an offence against a law of Victoria and to which a prescribed investigation relates; or
(ec) in the case of the Victorian Inspectorate—a prescribed offence that is an offence against the law of Victoria and to which a prescribed investigation relates; or
(f) in the case of the Crime and Corruption Commission—a prescribed offence that is an offence against the law of Queensland and to which a prescribed investigation relates; or
(h) in the case of the Law Enforcement Conduct Commission—a prescribed offence that is an offence against the law of New South Wales and to which a prescribed investigation relates; or
(ha) in the case of the Inspector of the Law Enforcement Conduct Commission—a prescribed offence that is an offence against a law of New South Wales and to which a prescribed investigation relates; or
(k) in the case of the Corruption and Crime Commission—a prescribed offence that is an offence against the law of Western Australia and to which a prescribed investigation relates; or
(l) in the case of the Parliamentary Inspector of the Corruption and Crime Commission—a prescribed offence that is an offence against the law of Western Australia and to which a prescribed investigation relates; or
(m) in the case of the Independent Commissioner Against Corruption—a prescribed offence that is an offence against the law of South Australia and to which a prescribed investigation relates.
relevant period, for a domestic preservation notice, means:
(a) for an historic domestic preservation notice—the period referred to in subparagraph 107H(1)(b)(i); and
(b) for an ongoing domestic preservation notice—the period referred to in subparagraph 107H(1)(b)(ii).
relevant staff member of an enforcement agency means:
(a) the head (however described) of the enforcement agency; or
(b) a deputy head (however described) of the enforcement agency; or
(c) any employee, member of staff or officer of the enforcement agency.
relevant statistics, in relation to applications of a particular kind, (except when used in Schedule 1) means all of the following:
(a) how many applications of that kind were made;
(b) how many applications of that kind were withdrawn or refused; and
(c) how many warrants were issued on applications of that kind.
renewal, in relation to a warrant issued to an agency in respect of a telecommunications service or person, means a warrant:
(a) that is issued to the agency in respect of that service or person; and
(b) the application for which was made while:
(i) the first‑mentioned warrant; or
(ii) a warrant that is, by virtue of any other application or applications of this definition, a renewal of the first‑mentioned warrant;
was still in force.
renewal application means an application by an agency for a warrant in respect of a telecommunications service or person, being an application made while a warrant issued to the agency in respect of that service or person is still in force.
responsible person for a computer network means:
(a) if an individual operates the network, or the network is operated on behalf of an individual—that individual; or
(b) if a body (whether or not a body corporate) operates the network, or the network is operated on behalf of a body (whether or not a body corporate):
(i) the head (however described) of the body, or a person acting as that head; or
(ii) if one or more positions are nominated by that head, or the person acting as that head, for the purposes of this subparagraph—each person who holds, or is acting in, such a position.
restricted record means a record other than a copy, that was obtained by means of an interception, whether or not in contravention of subsection 7(1), of a communication passing over a telecommunications system, but does not include a record of general computer access intercept information, a record of data disruption intercept information or a record of network activity warrant intercept information.
retained data means information, or documents, that a service provider is or has been required to keep under Part 5‑1A.
satellite‑based facility means a facility in a satellite.
secretary has the same meaning as in the Corporations Act 2001.
security has the same meaning as it has in the Australian Security Intelligence Organisation Act 1979.
security authority means an authority of the Commonwealth that has functions primarily relating to:
(a) security; or
(b) collection of foreign intelligence; or
(c) the defence of Australia; or
(d) the conduct of the Commonwealth’s international affairs.
senior executive AFP employee has the same meaning as in the Australian Federal Police Act 1979.
serious contravention has the meaning given by section 5E.
serious foreign contravention means:
(a) a contravention of a law of a foreign country that is punishable by a maximum penalty of:
(i) imprisonment for 3 years or more, imprisonment for life or the death penalty; or
(ii) a fine of an amount that is at least equivalent to 900 penalty units; or
(b) a crime within the jurisdiction of the ICC; or
(c) a War Crimes Tribunal offence.
serious offence has the meaning given by section 5D.
serious Part 5.3 offence has the meaning given by section 105A.2 of the Criminal Code.
service provider has the meaning given by subsection 187A(1).
source (except in item 2 of the table in subsection 187AA(1)) means a person who provides information:
(a) to another person who is working in a professional capacity as a journalist; and
(b) in the normal course of the other person’s work in such a capacity; and
(c) in the expectation that the information may be disseminated in the form of:
(i) news, current affairs or a documentary; or
(ii) commentary or opinion on, or analysis of, news, current affairs or a documentary.
special ACC investigation has the same meaning as in the ACC Act.
special ACC operation/investigation has the same meaning as in the ACC Act.
Special Register means the Special Register of Warrants kept under section 81C.
staff member, in relation to the Australian Federal Police, means an AFP employee who is not a member of the Australian Federal Police.
staff member of ASIC has the same meaning as staff member in the Australian Securities and Investments Commission Act 2001.
staff member of the NACC has the same meaning as in the National Anti‑Corruption Commission Act 2022.
State includes the Northern Territory.
stored communication (except when used in Schedule 1) means a communication that:
(a) is not passing over a telecommunications system; and
(b) is held on equipment that is operated by, and is in the possession of, a carrier; and
(c) cannot be accessed on that equipment, by a person who is not a party to the communication, without the assistance of an employee of the carrier.
stored communications warrant means a warrant issued under Chapter 3.
stored communications warrant information has the meaning given by section 6EB.
subscriber means a person who rents or uses a telecommunications service.
succeeding Part 5.3 supervisory order has the meaning given by section 6U.
superior Court Judge means:
(a) a Judge of the Federal Court of Australia; or
(b) a Judge of the Federal Circuit and Family Court of Australia (Division 1).
telecommunications device means a terminal device that is capable of being used for transmitting or receiving a communication over a telecommunications system.
telecommunications network means a system, or series of systems, for carrying communications by means of guided or unguided electromagnetic energy or both, but does not include a system, or series of systems, for carrying communications solely by means of radiocommunication. This definition does not apply to Schedule 1.
telecommunications number means the address used by a carrier for the purposes of directing a communication to its intended destination and identifying the origin of the communication, and includes:
(a) a telephone number; and
(b) a mobile telephone number; and
(c) a unique identifier for a telecommunications device (for example, an electronic serial number or a Media Access Control address); and
(d) a user account identifier; and
(e) an internet protocol address; and
(f) an email address.
telecommunications service means a service for carrying communications by means of guided or unguided electromagnetic energy or both, being a service the use of which enables communications to be carried over a telecommunications system operated by a carrier but not being a service for carrying communications solely by means of radiocommunication.
telecommunications service warrant means an interception warrant issued or to be issued under section 9, 11A, 46 or 48.
telecommunications system means:
(a) a telecommunications network that is within Australia; or
(b) a telecommunications network that is partly within Australia, but only to the extent that the network is within Australia;
and includes equipment, a line or other facility that is connected to such a network and is within Australia.
telephone application (except when used in Schedule 1) means an application made by telephone for a Part 2‑5 warrant or a stored communications warrant.
Territory does not include the Northern Territory.
terrorist act has the same meaning as in Part 5.3 of the Criminal Code.
terrorist offender has the meaning given by section 105A.2 of the Criminal Code.
unexplained wealth legislation has the same meaning as in the Proceeds of Crime Act 2002.
Victorian Inspectorate means the Victorian Inspectorate established under the Victorian Inspectorate Act.
Victorian Inspectorate Act means the Victorian Inspectorate Act 2011 of Victoria.
Victorian Inspectorate officer means a person who is a Victorian Inspectorate Officer (within the meaning of the Victorian Inspectorate Act).
War Crimes Tribunal has the same meaning as Tribunal in the International War Crimes Tribunals Act 1995.
War Crimes Tribunal offence has the same meaning as Tribunal offence in the International War Crimes Tribunals Act 1995.
warrant means:
(a) except in Chapter 2—an interception warrant or a stored communications warrant; or
(b) in Chapter 2 (except in Part 2‑5)—an interception warrant (whether issued before or after the commencement of this definition), a general computer access warrant, a data disruption warrant, a network activity warrant or an ASIO computer access warrant; or
(c) in Part 2‑5—a Part 2‑5 warrant.
working day means any day except:
(a) a Saturday or a Sunday; or
(b) a day that is a public holiday in any State or Territory.
(2) Where a telecommunications service is provided by a carrier for the use of an employee or employees of the carrier (not being a telecommunications service to which that person is the subscriber or those persons are subscribers), the carrier shall, for the purposes of this Act, be deemed to be the subscriber to that telecommunications service.
(3) For the purposes of this Act, the question whether equipment, or a line or other facility, is connected to a telecommunications network is to be determined in the same manner as that question is determined for the purposes of the Telecommunications Act 1997.
(4) A reference in this Act to the Attorney‑General shall, at a time when the Attorney‑General is absent from Australia or when, by reason of illness of the Attorney‑General or for any other reason, the Director‑General of Security cannot readily communicate with the Attorney‑General, be read as including a reference to a Minister who has been authorized in writing by the Attorney‑General to perform the functions of the Attorney‑General under this Act at such a time.
(4A) A reference in this Act to an employee of a carrier includes a reference to a person who is engaged by the carrier or whose services are made available to the carrier.
(4B) A reference in this Act to an employee of a security authority includes a reference to a person who is engaged by the security authority or whose services are made available to the security authority.
(5) For the purposes of the definition of telecommunications system in subsection (1), a telecommunications network shall be taken to be within Australia to the extent that the network is used for the purpose of carrying communications:
(a) over an earth‑based facility within Australia, or between earth‑based facilities within Australia;
(b) from an earth‑based facility within Australia to a satellite‑based facility, but only to the extent that the next earth‑based facility to which the communications will be carried is an earth‑based facility within Australia;
(c) from a satellite‑based facility to an earth‑based facility within Australia, but only to the extent that the last earth‑based facility from which the communications were carried was an earth‑based facility within Australia; and
(d) over a satellite‑based facility, or between satellite‑based facilities, but only to the extent that:
(i) the last earth‑based facility from which the communications were carried was an earth‑based facility within Australia; and
(ii) the next earth‑based facility to which the communications will be carried is an earth‑based facility within Australia;
whether or not the communications originated in Australia, and whether or not the final destination of the communications is within Australia.
(6) For the purposes of the definition of foreign intelligence in subsection (1), Australia includes the external Territories.
Permitted purposes—Inspector of the Law Enforcement Conduct Commission
(6A) For the purposes of subparagraph (dc)(i) of the definition of permitted purpose in subsection (1), agency maladministration in relation to the Law Enforcement Conduct Commission has the same meaning as it has in the Law Enforcement Conduct Commission Act 2016 (NSW) in relation to the NSW Police Force or the Crime Commission.
Permitted purposes—Law Enforcement Conduct Commission
(7) For the purposes of subparagraph (e)(i) of the definition of permitted purpose in subsection (1), this subsection applies to conduct that:
(a) both:
(i) involves a police officer, administrative employee or Crime Commission officer; and
(ii) the Law Enforcement Conduct Commission has decided is (or could be) serious misconduct or officer maladministration that is serious maladministration and should be investigated; or
(b) both:
(i) involves the Commissioner of Police or a Deputy Commissioner of Police; and
(ii) is (or could be) police misconduct or officer maladministration; or
(c) both:
(i) involves the Crime Commissioner or an Assistant Commissioner of the Crime Commission; and
(ii) is (or could be) Crime Commission officer misconduct or officer maladministration; or
(d) both Houses of the Parliament of New South Wales refer to the Commission for investigation under section 196 of the Law Enforcement Conduct Commission Act 2016 (NSW).
(8) An expression used in subsection (7) of this section and in the Law Enforcement Conduct Commission Act 2016 (NSW) has the same meaning in that subsection as in that Act.
5AA Eligible Commonwealth authority declarations
The Minister may, by notice published in the Gazette, declare a Commonwealth Royal Commission to be an eligible Commonwealth authority for the purposes of this Act if the Minister is satisfied that the Royal Commission is likely to inquire into matters that may involve the commission of a prescribed offence.
5AB Authorised officers
Authorised officers of an enforcement agency
(1) The head (however described) of an enforcement agency may, by writing, authorise a management office or management position in the enforcement agency for the purposes of subparagraph (b)(iii) of the definition of authorised officer in subsection 5(1).
Authorised officers of the Australian Federal Police
(1A) The Commissioner of Police may authorise, in writing, a senior executive AFP employee who is a member of the Australian Federal Police to be an authorised officer.
(2) A copy of an authorisation must be given to the Communications Access Coordinator:
(a) in the case of an authorisation made under subsection (1)—by the head of the enforcement agency; and
(b) in the case of an authorisation made under subsection (1A)—by the Commissioner of Police.
Authorisations are not legislative instruments
(3) An authorisation made under this section is not a legislative instrument.
5AC Authorisation of certifying officers
(1) The Commissioner of Police may authorise, in writing, a senior executive AFP employee who is a member of the Australian Federal Police to be a certifying officer of the Australian Federal Police.
(2) The National Anti‑Corruption Commissioner may authorise, in writing, a staff member of the National Anti‑Corruption Commission who is an SES employee to be a certifying officer of the National Anti‑Corruption Commission.
(3) The Chief Executive Officer of the ACC may authorise, in writing, a member of the staff of the ACC who is an SES employee or acting SES employee to be a certifying officer of the ACC.
(4) The Commissioner of a Police Force of a State may authorise, in writing, an officer of the police force of the State whose rank is equivalent to that of a senior executive AFP employee who is a member of the Australian Federal Police to be a certifying officer of the Police Force of the State.
(5) The Commissioner of the Crime Commission may authorise, in writing, a member of the staff of the Crime Commission who occupies an office or position at an equivalent level to that of a Public Service senior executive (within the meaning of the Government Sector Employment Act 2013 (NSW)) to be a certifying officer of the Crime Commission.
(6) The Chief Commissioner of the Independent Commission Against Corruption may authorise, in writing, an officer of the Independent Commission Against Corruption who occupies an office or position at an equivalent level to that of a Public Service senior executive (within the meaning of the Government Sector Employment Act 2013 (NSW)) to be a certifying officer of the Independent Commission Against Corruption.
(7) The Commissioner of the IBAC may authorise, in writing, an IBAC officer who occupies an office or position at an equivalent level to that of an executive (within the meaning of the Public Administration Act 2004 of Victoria) to be a certifying officer of the IBAC.
(8) The Chief Commissioner of the Law Enforcement Conduct Commission may authorise, in writing:
(a) an Assistant Commissioner of the Commission; or
(b) a member of the staff of the Law Enforcement Conduct Commission who occupies an office or position at an equivalent level to that of a Public Service senior executive (within the meaning of the Government Sector Employment Act 2013 (NSW));
to be a certifying officer of the Commission.
(9) The Commissioner of the Corruption and Crime Commission may authorise, in writing, an officer of the Corruption and Crime Commission who occupies an office or position at an equivalent level to that of a senior executive officer within the meaning of the Public Sector Management Act 1994 of Western Australia to be a certifying officer of the Corruption and Crime Commission.
(9A) The Independent Commissioner Against Corruption may authorise, in writing, a member of the staff of the Independent Commissioner Against Corruption who occupies an office or position at an equivalent level to that of an executive employee (within the meaning of the Public Sector Act 2009 of South Australia) to be a certifying officer of the Independent Commissioner Against Corruption.
(10) The chief executive officer of any other agency may authorise, in writing, an officer of the agency (by whatever name called) who holds, or is acting in, an office or position in the agency which is involved in the management of the agency to be a certifying officer of the agency.
5AD Authorisation of certifying person
The Director‑General of Security may authorise, in writing, a senior position‑holder (within the meaning of the Australian Security Intelligence Organisation Act 1979) to be a certifying person.
5AE Authorisation of members of the staff of a Commonwealth Royal Commission
A sole Commissioner or a member of a Commonwealth Royal Commission may authorise, in writing, a person assisting the Commission to be a member of the staff of the Commission for the purposes of this Act.
5A Communicating etc. certain information
For the purposes of this Act (other than Schedule 1), a person who gives to another person, makes use of, makes a record of, or produces in evidence in a proceeding, a record (in this section called the relevant record) obtained by an interception, whether or not in contravention of subsection 7(1), of a communication shall be taken to communicate to the other person, make use of, make a record of, or give in evidence in that proceeding, as the case may be, so much of the information obtained by the interception as can be derived from the relevant record.
5B Exempt proceedings
(1) A reference in this Act to an exempt proceeding is a reference to:
(a) a proceeding by way of a prosecution for a prescribed offence; or
(b) a proceeding for the confiscation or forfeiture of property, or for the imposition of a pecuniary penalty, in connection with the commission of a prescribed offence; or
(ba) a proceeding under the Spam Act 2003; or
(bb) a proceeding under, or a proceeding relating to a matter arising under, Division 104 (control orders) or Division 105A (post‑sentence orders) of the Criminal Code; or
(bc) a proceeding under, or a proceeding relating to a matter arising under, a preventative detention order law, so far as the proceeding relates to a preventative detention order (within the meaning of that law); or
(bd) a proceeding under, or a proceeding relating to a matter arising under, a post‑sentence detention law or a post‑sentence supervision law; or
(be) a proceeding under, or a proceeding relating to a matter arising under, the main unexplained wealth provisions; or
(bf) a proceeding under, or a proceeding relating to a matter arising under, the unexplained wealth legislation of a participating State, the Australian Capital Territory or the Northern Territory; or
(c) a proceeding for the taking of evidence pursuant to section 43 of the Extradition Act 1988, in so far as the proceeding relates to a prescribed offence; or
(ca) a proceeding under, or a proceeding relating to a matter arising under, an organised crime control law; or
(d) a proceeding for the extradition of a person from a State or Territory to another State or Territory, in so far as the proceeding relates to a prescribed offence; or
(da) a proceeding by way of a coroner’s inquest if, in the opinion of the coroner, the event that is the subject of the inquest may have resulted from the commission of a prescribed offence; or
(e) a police disciplinary proceeding; or
(ea) a proceeding in so far as it relates to:
(i) a decision by the Commissioner of Police to terminate the employment of an AFP employee or the appointment of a special member of the Australian Federal Police; or
(ii) a decision by the Commissioner of a Police Force of a State to terminate the appointment of an officer or member of staff of that Police Force; or
(eb) a proceeding in so far as it is, or relates to, disciplinary or legal action (within the meaning of section 6S) that is in relation to an eligible staff member (within the meaning of that section) of the Australian Federal Police or the ACC; or
(f) any other proceeding (not being a proceeding by way of a prosecution for an offence) in so far as it relates to alleged misbehaviour, or alleged improper conduct, of an officer of the Commonwealth or of a State; or
(g) a proceeding for the recovery of an amount due to a carrier in connection with the supply of a telecommunications service;
(h) a proceeding under section 13 of the Mutual Assistance in Criminal Matters Act 1987 in relation to a criminal matter (within the meaning of that Act) that concerns an offence, against the laws of the foreign country that made the request resulting in the proceeding, that is punishable by imprisonment for life or for a period, or maximum period, of at least 3 years; or
(haa) a proceeding under Division 5 of Part 4 of the International Criminal Court Act 2002; or
(hab) a proceeding before the International Criminal Court sitting in Australia under Part 5 of the International Criminal Court Act 2002; or
(ha) a proceeding of an eligible Commonwealth authority; or
(hb) a proceeding of the Independent Commission Against Corruption; or
(hc) a proceeding of the Inspector of the Independent Commission Against Corruption; or
(hd) a proceeding in relation to an application under subsection 34B(1) of the Australian Crime Commission Act 2002 in respect of contempt of the Australian Crime Commission; or
(i) a proceeding of the IBAC; or
(iaa) a proceeding of the Victorian Inspectorate; or
(ia) a proceeding of the Corruption and Crime Commission; or
(ib) a proceeding of the Parliamentary Inspector of the Corruption and Crime Commission; or
(j) a proceeding under Division 1 of Part 4 of the International War Crimes Tribunals Act 1995; or
(k) a proceeding of the Law Enforcement Conduct Commission; or
(ka) a proceeding of the Inspector of the Law Enforcement Conduct Commission; or
(kb) a proceeding of the Crime and Corruption Commission; or
(kc) a proceeding of the Independent Commissioner Against Corruption; or
(kd) a NACC Act process (within the meaning of the National Anti‑Corruption Commission Act 2022); or
(l) a proceeding by way of a bail application if the application relates to a proceeding by way of a prosecution for a prescribed offence; or
(m) a proceeding by way of review of a decision to refuse such a bail application; or
(n) a proceeding by way of a review of a decision to grant such a bail application.
Note: Paragraphs (l), (m) and (n) were inserted as a response to the decision of the Court of Appeal of New South Wales in Director of Public Prosecutions v Serratore (1995) 132 ALR 461.
(2) Without limiting subsection (1), a reference in Chapter 3 to an exempt proceeding includes a reference to:
(a) a proceeding by way of a prosecution for an offence punishable:
(i) by imprisonment for a period, or a maximum period, of at least 12 months; or
(ii) by a fine, or a maximum fine, of at least 60 penalty units if the offence is committed by an individual; or
(iii) if the offence cannot be committed by an individual—by a fine, or a maximum fine, of at least 300 penalty units; or
(b) a proceeding for the confiscation or forfeiture of property, or for the imposition of a pecuniary penalty, in connection with the commission of such an offence; or
(c) a proceeding for the taking of evidence pursuant to section 43 of the Extradition Act 1988, in so far as the proceeding relates to such an offence; or
(d) a proceeding for the extradition of a person from a State or Territory to another State or Territory, in so far as the proceeding relates to such an offence; or
(e) a proceeding by way of a coroner’s inquest if, in the opinion of the coroner, the event that is the subject of the inquest may have resulted from the commission of such an offence; or
(f) a proceeding for recovery of a pecuniary penalty for a contravention that would, if proved, render the person committing the contravention liable to:
(i) a pecuniary penalty, or a maximum pecuniary penalty, of at least 60 penalty units if the contravention is committed by an individual; or
(ii) if the contravention cannot be committed by an individual—a pecuniary penalty, or a maximum pecuniary penalty, of at least 300 penalty units.
5C Information or question relevant to inspection by Ombudsman
(1) For the purposes of this Act, information or a question is relevant to an inspection under Part 2‑7 or Chapter 4A of an agency’s records if the information or question is about:
(a) in any case:
(i) the location;
(ii) the making, compilation or keeping; or
(iii) the accuracy or completeness;
of any of those records;
(b) in any case—any matter to which any of those records relates; or
(c) if the Ombudsman suspects on reasonable grounds that an officer of the agency has contravened this Act—any matter relating to the suspected contravention.
(2) Nothing in subsection (1) limits the generality of a reference in this Act to information, or to a question, that is relevant to an inspection of an agency’s records.
5D Serious offences
General types of serious offences
(1) An offence is a serious offence if it is:
(a) a murder, or an offence of a kind equivalent to murder; or
(b) a kidnapping, or an offence of a kind equivalent to kidnapping; or
(c) an offence against Division 307 of the Criminal Code; or
(d) an offence constituted by conduct involving an act or acts of terrorism; or
(e) an offence against:
(i) Subdivision A of Division 72 of the Criminal Code; or
(ia) Subdivision B of Division 80 of the Criminal Code; or
(ib) section 80.2C of the Criminal Code; or
(ic) Division 82 of the Criminal Code (sabotage); or
(id) Division 83 of the Criminal Code (other threats to security); or
(ie) Division 91 of the Criminal Code (espionage); or
(if) Division 92 of the Criminal Code (foreign interference); or
(ig) Division 92A of the Criminal Code (theft of trade secrets involving foreign government principal); or
(ii) Division 101 of the Criminal Code; or
(iii) Division 102 of the Criminal Code; or
(iv) Division 103 of the Criminal Code; or
(v) section 104.27 of the Criminal Code; or
(va) section 105A.18A of the Criminal Code; or
(vi) Division 119 of the Criminal Code; or
(vii) Division 122 of the Criminal Code (secrecy of information); or
(viii) section 137.1A of the Criminal Code (aggravated offence for giving false or misleading information); or
(f) except for the purposes of an application for a warrant by an agency other than the ACC, an offence in relation to which the ACC is conducting a special ACC investigation.
(2) An offence is also a serious offence if:
(a) it is an offence punishable by imprisonment for life or for a period, or maximum period, of at least 7 years; and
(b) the particular conduct constituting the offence involved, involves or would involve, as the case requires:
(i) loss of a person’s life or serious risk of loss of a person’s life; or
(ii) serious personal injury or serious risk of serious personal injury; or
(iii) serious damage to property in circumstances endangering the safety of a person; or
(iiia) serious arson; or
(iv) trafficking in prescribed substances; or
(v) serious fraud; or
(vi) serious loss to the revenue of the Commonwealth, a State or the Australian Capital Territory; or
(vii) bribery or corruption of, or by:
(A) an officer of the Commonwealth; or
(B) an officer of a State; or
(C) an officer of a Territory; or
Offences involving planning and organisation
(3) An offence is also a serious offence if it is an offence punishable by imprisonment for life or for a period, or maximum period, of at least 7 years, where the offence:
(a) involves 2 or more offenders and substantial planning and organisation; and
(b) involves, or is of a kind that ordinarily involves, the use of sophisticated methods and techniques; and
(c) is committed, or is of a kind that is ordinarily committed, in conjunction with other offences of a like kind; and
(d) consists of, or involves, any of the following:
(i) theft;
(ii) handling of stolen goods;
(iii) tax evasion;
(iv) currency violations;
(v) extortion;
(vi) bribery or corruption of, or by:
(A) an officer of the Commonwealth; or
(B) an officer of a State; or
(C) an officer of a Territory;
(vii) bankruptcy violations;
(viii) company violations;
(ix) harbouring criminals;
(x) dealings in firearms or armaments;
(xi) a sexual offence against a person who is under 16;
(xii) an immigration offence.
Offences relating to criminal groups
(3AA) An offence is also a serious offence if it is an offence against section 93T of the Crimes Act 1900 of New South Wales.
Offences relating to people smuggling, slavery, sexual servitude, deceptive recruiting and trafficking in persons etc.
(3A) An offence is also a serious offence if it is an offence against:
(a) any of the following provisions of the Criminal Code:
(i) section 73.1, 73.2, 73.3, 73.3A, 73.8, 73.9, 73.10 or 73.11;
(ii) section 270.3, 270.5, 270.6A, 270.7, 270.7B or 270.7C (slavery or slavery‑like offences);
(iii) section 271.2, 271.3, 271.4, 271.5, 271.6 or 271.7 (trafficking in persons);
(iv) section 271.7B, 271.7C, 271.7D or 271.7E (organ trafficking);
(v) section 271.7F or 271.7G (harbouring victims); or
(b) section 233A, 233B, 233C, 233D, 233E, 234 or 234A of the Migration Act 1958.
Sexual offences against children and offences involving child abuse material or harm to children
(3B) An offence is also a serious offence if:
(a) it is an offence against Division 272, 273 or 273A, Subdivision B or C of Division 471, or Subdivision D or F of Division 474, of the Criminal Code; or
(b) the particular conduct constituting the offence otherwise involved, involves or would involve:
(i) the production, publication, possession, supply or sale of, or other dealing in, child abuse material (within the meaning of Part 10.6 of the Criminal Code); or
(ii) consenting to or procuring the employment of a child, or employing a child, in connection with such material.
Money laundering offences etc.
(4) An offence is also a serious offence if it is an offence against any of the following provisions:
(a) Part 10.2 of the Criminal Code (other than section 400.9);
(b) Part 4AC of the Crimes Act 1900 of New South Wales;
(c) section 194, 195 or 195A of the Crimes Act 1958 of Victoria;
(d) section 64 of the Crimes (Confiscation of Profits) Act 1989 of Queensland;
(e) section 563A of The Criminal Code of Western Australia;
(f) section 138 of the Criminal Law Consolidation Act 1935 of South Australia;
(g) section 67 of the Crime (Confiscation of Profits) Act 1993 of Tasmania;
(h) section 74 of the Proceeds of Crime Act 1991 of the Australian Capital Territory;
(i) Division 3A of Part VII of Schedule I to the Criminal Code Act of the Northern Territory.
Cybercrime offences etc.
(5) An offence is also a serious offence if it is an offence against any of the following provisions:
(a) Part 10.7 of the Criminal Code;
(b) section 308C, 308D, 308E, 308F, 308G, 308H or 308I of the Crimes Act 1900 of New South Wales;
(c) section 247B, 247C, 247D, 247E, 247F, 247G or 247H of the Crimes Act 1958 of Victoria;
(d) a provision of a law of a State (other than New South Wales or Victoria) that corresponds to a provision covered by paragraph (a), (b) or (c);
(e) a provision of a law of a Territory that corresponds to a provision covered by paragraph (a), (b) or (c);
(f) section 440A of The Criminal Code of Western Australia.
Serious drug offences
(5A) An offence is also a serious offence if it is an offence against Part 9.1 of the Criminal Code (other than section 308.1 or 308.2).
Cartel offences
(5B) An offence is also a serious offence if it is:
(a) an offence against section 44ZZRF or 44ZZRG of the Competition and Consumer Act 2010; or
(b) an offence under subsection 79(1) of the Competition and Consumer Act 2010 that relates to an offence covered by paragraph (a); or
(c) an offence against section 44ZZRF or 44ZZRG of the text set out in Part 1 of Schedule 1 to the Competition and Consumer Act 2010, so far as that section applies as a law of a State, the Northern Territory or the Australian Capital Territory; or
(d) an offence under subsection 79(1) of the Competition and Consumer Act 2010 (so far as that subsection applies as a law of a State, the Northern Territory or the Australian Capital Territory) that relates to an offence covered by paragraph (c).
Note: Offences covered by paragraph (c) or (d) form part of the Competition Code of the State or Territory concerned.
Market misconduct
(5C) An offence is also a serious offence if it is an offence against any of the following provisions of the Corporations Act 2001:
(a) section 1041A;
(b) subsection 1041B(1);
(c) subsection 1041C(1);
(d) section 1041D;
(e) subsection 1041E(1);
(f) subsection 1041F(1);
(g) section 1041G;
(h) subsection 1043A(1);
(i) subsection 1043A(2).
Offences connected with other serious offences
(6) An offence is also a serious offence if it is an offence constituted by:
(a) aiding, abetting, counselling or procuring the commission of; or
(b) being, by act or omission, in any way, directly or indirectly, knowingly concerned in, or party to, the commission of; or
(c) conspiring to commit;
an offence that is a serious offence under any of the preceding subsections.
(7) An offence is also a serious offence if it is an offence constituted by receiving or assisting a person who is, to the offender’s knowledge, guilty of a serious offence mentioned in subsection (1), in order to enable the person to escape punishment or to dispose of the proceeds of the offence.
(8) An offence is also a serious offence if it is an offence against any of the following provisions:
(a) section 131.1, 135.1, 142.1 or 142.2, subsection 148.2(3), or section 268.112 of the Criminal Code;
(b) section 35, 36, 36A, 37, 39, 41, 42, 43, 46, 46A or 47 of the Crimes Act 1914.
Offences relating to criminal associations and organisations
(8A) An offence is also a serious offence if it is an offence against Division 390 of the Criminal Code.
Offences relating to criminal organisations
(9) An offence is also a serious offence if:
(a) the particular conduct constituting the offence involved, involves or would involve, as the case requires:
(i) associating with a criminal organisation, or a member of a criminal organisation; or
(ii) contributing to the activities of a criminal organisation; or
(iii) aiding, abetting, counselling or procuring the commission of a prescribed offence for a criminal organisation; or
(iv) being, by act or omission, in any way, directly or indirectly, knowingly concerned in, or party to, the commission of a prescribed offence for a criminal organisation; or
(v) conspiring to commit a prescribed offence for a criminal organisation; and
(b) if the offence is covered by subparagraph (a)(i)—the conduct constituting the offence was engaged in, or is reasonably suspected of having been engaged in, for the purpose of supporting the commission of one or more prescribed offences by the organisation or its members; and
(c) if the offence is covered by subparagraph (a)(ii)—the conduct constituting the offence was engaged in, or is reasonably suspected of having been engaged in, for the purpose of enhancing the ability of the organisation or its members to commit or facilitate the commission of one or more prescribed offences.
5E Serious contraventions
(1) For the purposes of this Act, a serious contravention is a contravention of a law of the Commonwealth, a State or a Territory that:
(a) is a serious offence; or
(b) is an offence punishable:
(i) by imprisonment for a period, or a maximum period, of at least 3 years; or
(ii) if the offence is committed by an individual—by a fine, or a maximum fine, of at least 180 penalty units; or
(iii) if the offence cannot be committed by an individual—by a fine, or a maximum fine, of at least 900 penalty units; or
(c) could, if established, render the person committing the contravention liable:
(i) if the contravention were committed by an individual—to pay a pecuniary penalty of 180 penalty units or more, or to pay an amount that is the monetary equivalent of 180 penalty units or more; or
(ii) if the contravention cannot be committed by an individual—to pay a pecuniary penalty of 900 penalty units or more, or to pay an amount that is the monetary equivalent of 900 penalty units or more.
(2) Except so far as the contrary intention appears, a contravention, or a contravention of a particular kind, is taken, for the purposes of this Act, to be a contravention, or to be a contravention of that kind, as the case may be, that:
(a) has been committed or is being committed; or
(b) is suspected on reasonable grounds of having been committed, of being committed or of being likely to be committed.
(3) To avoid doubt, a reference in this section to a number of penalty units in relation to a contravention of a law of a State or a Territory includes a reference to an amount of a fine or pecuniary penalty that is equivalent, under section 4AA of the Crimes Act 1914, to that number of penalty units.
5F When a communication is passing over a telecommunications system
For the purposes of this Act (other than Schedule 1), a communication:
(a) is taken to start passing over a telecommunications system when it is sent or transmitted by the person sending the communication; and
(b) is taken to continue to pass over the system until it becomes accessible to the intended recipient of the communication.
5G The intended recipient of a communication
For the purposes of this Act (other than Schedule 1), the intended recipient of a communication is:
(a) if the communication is addressed to an individual (either in the individual’s own capacity or in the capacity of an employee or agent of another person)—the individual; or
(b) if the communication is addressed to a person who is not an individual—the person; or
(c) if the communication is not addressed to a person—the person who has, or whose employee or agent has, control over the telecommunications service to which the communication is sent.
5H When a communication is accessible to the intended recipient
(1) For the purposes of this Act, a communication is accessible to its intended recipient if it:
(a) has been received by the telecommunications service provided to the intended recipient; or
(b) is under the control of the intended recipient; or
(c) has been delivered to the telecommunications service provided to the intended recipient.
(2) Subsection (1) does not limit the circumstances in which a communication may be taken to be accessible to its intended recipient for the purposes of this Act.
6 Interception of a communication
(1) For the purposes of this Act (other than Schedule 1), but subject to this section, interception of a communication passing over a telecommunications system consists of listening to or recording, by any means, such a communication in its passage over that telecommunications system without the knowledge of the person making the communication.
Communications to or from emergency service facilities
(2A) An emergency service facility is premises that are declared by the Minister, by written instrument, to be an emergency service facility.
(2B) The Minister may declare premises to be an emergency service facility if the Minister is satisfied that the premises are operated by:
(a) a police force or service of the Commonwealth, of a State or of the Australian Capital Territory; or
(b) a fire service of a State or of the Australian Capital Territory; or
(c) an ambulance service of a State or of the Australian Capital Territory; or
(d) a service for despatching, or referring matters for the attention of, a force or service referred to in paragraph (a), (b) or (c);
to enable that force or service, or another force or service, to deal with a request for assistance in an emergency.
(2C) A declaration by the Minister under subsection (2B) is not a legislative instrument.
(2D) If the Minister makes a declaration under subsection (2B), the Minister must, by legislative instrument, specify:
(a) the name of the force or service operating the premises to which the declaration relates; and
(b) the geographical region in which those premises are located.
(2E) If a House of the Parliament disallows, in accordance with section 42 of the Legislation Act 2003, a legislative instrument made under subsection (2D), the declaration to which the instrument relates is taken to have been revoked at the time of the disallowance.
(2F) If a person who is lawfully engaged in duties relating to the receiving and handling of communications to or from an emergency service facility listens to or records a communication passing over a telecommunications system to or from the emergency service facility, the listening or recording does not, for the purposes of this Act, constitute an interception of the communication.
(2G) Subsection (2F) only applies in relation to an emergency service facility if signs notifying persons that communications to or from the facility may be listened to or recorded are clearly visible at each entrance to the facility.
(2H) If:
(a) an inspector under section 284 of the Radiocommunications Act 1992 is lawfully engaged in performing spectrum management functions of the Australian Communications and Media Authority under the Australian Communications and Media Authority Act 2005 or the Radiocommunications Act 1992; and
(b) while performing those spectrum management functions, the inspector incidentally listens to or records a communication passing over a telecommunications system;
the listening or recording does not, for the purposes of this Act, constitute an interception of the communication.
(2J) If:
(a) an inspector under section 284 of the Radiocommunications Act 1992 is lawfully engaged in exercising powers under Part 2 of the Regulatory Powers (Standard Provisions) Act 2014 as it applies in relation to:
(i) a provision mentioned in subsection 284A(1) of the Radiocommunications Act 1992; or
(ii) information mentioned in subsection 284A(2) of the Radiocommunications Act 1992; and
(b) while exercising those powers, the inspector incidentally listens to or records a communication passing over a telecommunications system;
the listening or recording does not, for the purposes of this Act, constitute an interception of the communication.
(2K) If:
(a) an inspector under section 284 of the Radiocommunications Act 1992 is lawfully engaged in exercising powers under Part 3 of the Regulatory Powers (Standard Provisions) Act 2014 as it applies in relation to a provision mentioned in subsection 284B(1) of the Radiocommunications Act 1992; and
(b) while exercising those powers, the inspector incidentally listens to or records a communication passing over a telecommunications system;
the listening or recording does not, for the purposes of this Act, constitute an interception of the communication.
Communications to publicly‑listed ASIO numbers
(3) A publicly‑listed ASIO number is a telephone number that:
(a) enables members of the public to contact the Organisation; and
(b) is listed in:
(i) a telephone directory; or
(ii) a telephone number database;
that is available to the public.
(4) If:
(a) a person makes a call to a publicly‑listed ASIO number; and
(b) another person who is lawfully engaged in duties relating to the receiving and handling of communications to that number listens to or records a communication passing over a telecommunications system in the course of that call;
the listening or recording does not, for the purposes of this Act, constitute the interception of the communication.
6AAA When a computer network is appropriately used by an employee etc. of a Commonwealth agency etc.
For the purposes of this Act, if a computer network is operated by, or on behalf of, a Commonwealth agency, security authority or eligible authority of a State, the network is appropriately used by an employee, office holder or contractor of the agency or authority if:
(a) the employee, office holder or contractor has undertaken, in writing, to use the network in accordance with any conditions specified, in writing, by the agency or authority; and
(b) those conditions are reasonable; and
(c) the employee, office holder or contractor complies with those conditions when using the network.
6AA Accessing a stored communication
For the purposes of this Act, accessing a stored communication consists of listening to, reading or recording such a communication, by means of equipment operated by a carrier, without the knowledge of the intended recipient of the communication.
6A Investigation of an offence
(1) A reference in this Act to the investigation by an agency, or by an eligible authority of a State, of an offence is a reference to:
(a) in the case of the Australian Federal Police—an investigation of that offence, in the course of the performance by the Australian Federal Police of its functions, by members of the Australian Federal Police;
(b) in the case of a Police Force of a State—an investigation of that offence, in the course of the performance by that Police Force of its functions, by officers of that Police Force; or
(c) in the case of the following eligible authorities or agencies, a prescribed investigation, in so far as it relates to that offence:
(ia) the National Anti‑Corruption Commission;
(i) the ACC;
(ii) the Crime Commission;
(iii) the Crime and Corruption Commission;
(v) the Independent Commission Against Corruption;
(va) the Inspector of the Independent Commission Against Corruption;
(vi) the Law Enforcement Conduct Commission;
(vii) the Inspector of the Law Enforcement Conduct Commission;
(viii) the IBAC;
(ix) the Victorian Inspectorate;
(x) the Corruption and Crime Commission;
(xi) the Parliamentary Inspector of the Corruption and Crime Commission;
(xii) the Independent Commissioner Against Corruption.
(2) A reference in this Act to an investigation, in relation to an offence, is, in the case of an offence that is suspected on reasonable grounds of being likely to be committed, a reference to the investigation of the likely commission of that offence.
6B Involvement in an offence
For the purposes of this Act, a person shall be taken to be involved in an offence if, and only if, the person:
(a) has committed, or is committing, the offence; or
(b) is suspected on reasonable grounds of having committed, of committing, or of being likely to commit, the offence.
6C Issue of warrant to agency or eligible authority
For the purposes of this Act, a warrant issued on an application by an agency or an officer of an agency, or on an application by an eligible authority of a State, shall be taken to be issued to that agency or eligible authority, as the case may be.
6D Judges
(1) In this Act, unless the contrary intention appears:
eligible Judge (except when used in Schedule 1) means a Judge:
(a) in relation to whom a consent under subsection (2) and a declaration under subsection (3) are in force; and
(b) in relation to a warrant applied for by the National Anti‑Corruption Commission—who is a superior Court Judge.
Judge means a person who is a Judge of a court created by the Parliament.
(2) A Judge may by writing consent to be nominated by the Attorney‑General under subsection (3).
(3) The Attorney‑General may by writing declare Judges in relation to whom consents are in force under subsection (2) to be eligible Judges for the purposes of this Act (other than Schedule 1).
(4) An eligible Judge has, in relation to the performance or exercise of a function or power conferred on an eligible Judge by this Act (other than Schedule 1), the same protection and immunity as a Justice of the High Court has in relation to proceedings in the High Court.
6DA Nominated AAT members
(1) The Attorney‑General may, by writing, nominate a person who holds one of the following appointments to the Administrative Appeals Tribunal to issue warrants (except to the National Anti‑Corruption Commission) under Part 2‑5:
(a) Deputy President;
(b) senior member (of any level);
(c) member (of any level).
(2) Despite subsection (1), the Attorney‑General must not nominate a person who holds an appointment as a part‑time senior member or a member of the Tribunal unless the person:
(a) is enrolled as a legal practitioner of the High Court, of another federal court or of the Supreme Court of a State or of the Australian Capital Territory; and
(b) has been so enrolled for not less than 5 years.
(3) A nomination ceases to have effect if:
(a) the nominated AAT member ceases to hold an appointment of a kind set out in subsection (1); or
(b) the Attorney‑General, by writing, withdraws the nomination.
(4) A nominated AAT member has, in performing a function of or connected with, issuing a warrant under Part 2‑5, the same protection and immunity as a Justice of the High Court has in relation to proceedings in the High Court.
6DB Issuing authorities
(1) The Attorney‑General may, by writing, appoint as an issuing authority:
(a) a person who is:
(i) a judge of a court created by the Parliament; or
(iii) a magistrate;
and in relation to whom a consent under subsection (2) is in force; or
(b) a person who:
(i) holds an appointment to the Administrative Appeals Tribunal as Deputy President, senior member (of any level) or member (of any level); and
(ii) is enrolled as a legal practitioner of a federal court or of the Supreme Court of a State or a Territory; and
(iii) has been enrolled for at least 5 years.
(2) A person who is:
(a) a judge of a court created by the Parliament; or
(c) a magistrate;
may, by writing, consent to be appointed by the Attorney‑General under subsection (1).
(3) A person’s appointment ceases to have effect if:
(a) the person ceases to be a person whom the Attorney‑General could appoint under this section; or
(b) the Attorney‑General, by writing, revokes the appointment.
(3A) An appointment under subsection (1) has no effect for the purposes of Schedule 1.
(4) An issuing authority has, in relation to the performance or exercise of a function or power conferred on an issuing authority by this Act (other than Schedule 1), the same protection and immunity as a Justice of the High Court has in relation to proceedings in the High Court.
6DC Part 4‑1 issuing authorities
(1) The Attorney‑General may, by writing, appoint as a Part 4‑1 issuing authority:
(a) a person who is:
(i) a judge of a court created by the Parliament; or
(iii) a magistrate;
and in relation to whom a consent under subsection (2) is in force; or
(b) a person who:
(i) holds an appointment to the Administrative Appeals Tribunal as Deputy President, full‑time senior member, part‑time senior member or member; and
(ii) is enrolled as a legal practitioner of a federal court or of the Supreme Court of a State or a Territory; and
(iii) has been enrolled for at least 5 years.
(2) A person who is:
(a) a judge of a court created by the Parliament; or
(b) a magistrate;
may, by writing, consent to be appointed by the Attorney‑General under subsection (1).
(3) A person’s appointment ceases to have effect if:
(a) the person ceases to be a person whom the Attorney‑General could appoint under this section; or
(b) the Attorney‑General, by writing, revokes the appointment.
(4) A Part 4‑1 issuing authority has, in relation to the performance or exercise of a function or power conferred on a Part 4‑1 issuing authority by this Act, the same protection and immunity as a Justice of the High Court has in relation to proceedings in the High Court.
6E Lawfully intercepted information
(1) Subject to subsections (2) and (3), a reference in this Act to lawfully intercepted information is a reference to information obtained (whether before or after the commencement of this section) by intercepting, otherwise than in contravention of subsection 7(1), a communication passing over a telecommunications system.
(2) A reference in this Act to lawfully intercepted information that was originally obtained by an agency, or by an eligible authority of a State, is a reference to:
(a) information obtained, whether before or after the commencement of this section, by intercepting a communication under a warrant issued to the agency or authority; or
(b) information communicated to the agency or authority in accordance with section 65A or 63E.
(3) A reference in this Act to lawfully intercepted information does not include a reference to information obtained in accordance with an international production order (within the meaning of Schedule 1).
6EA Interception warrant information
A reference in this Act to interception warrant information is a reference to:
(a) information about any of the following:
(i) an application for an interception warrant;
(ii) the issue of an interception warrant;
(iii) the existence or non‑existence of an interception warrant;
(iv) the expiry of an interception warrant; or
(b) any other information that is likely to enable the identification of:
(i) the telecommunications service to which an interception warrant relates; or
(ii) a person specified in an interception warrant as a person using or likely to use the telecommunications service to which the warrant relates.
6EAA Preservation notice information
A reference in this Act to preservation notice information is a reference to:
(a) information about any of the following:
(i) the giving of a preservation notice;
(ii) for a foreign preservation notice—the making of a request under section 107P to preserve stored communications covered by the notice;
(iii) the existence or non‑existence of a preservation notice;
(iv) the expiry of a preservation notice; or
(b) any other information that is likely to enable the identification of:
(i) the person or telecommunications service specified in a preservation notice; or
(ii) the person or telecommunications service to which a preservation notice relates.
6EB Stored communications warrant information
A reference in this Act to stored communications warrant information is a reference to:
(a) information about any of the following:
(i) an application for a stored communications warrant;
(ii) the issue of a stored communications warrant;
(iii) the existence or non‑existence of a stored communications warrant;
(iv) the expiry of a stored communications warrant; or
(b) any other information that is likely to enable the identification of:
(i) the telecommunications service to which a stored communications warrant relates; or
(ii) a person specified in a stored communications warrant as a person using or likely to use the telecommunications service to which the warrant relates.
6F Offences
Except so far as the contrary intention appears, a reference in this Act to an offence, or to an offence of a particular kind, is a reference to an offence, or to an offence of that kind, as the case may be, that:
(a) has been committed or is being committed; or
(b) is suspected on reasonable grounds of having been committed, of being committed or of being likely to be committed.
6G Officer of the Commonwealth, of a State or of a Territory
(1) A reference in this Act to an officer of the Commonwealth includes a reference to:
(a) a person holding, or acting in, an office (including a judicial office) or appointment, or employed, under a law of the Commonwealth;
(b) a person who is, or is a member of, an authority or body established for a public purpose by or under a law of the Commonwealth, or is an officer or employee of such an authority or body; and
(c) an officer of the Australian Capital Territory;
but does not include a reference to an officer of the Northern Territory or of an external Territory.
(2) A reference in this Act to an officer of a State includes a reference to:
(a) a person holding, or acting in, an office (including a judicial office) or appointment, or employed, under a law of the State; and
(b) a person who is, or is a member of, an authority or body established for a public purpose by or under a law of the State, or is an officer or employee of such an authority or body.
(3) A reference in this Act to an officer of a Territory includes a reference to:
(a) a person holding, or acting in, an office (including a judicial office) or appointment, or employed, under a law of the Territory; and
(b) a person who is, or is a member of, an authority or body established for a public purpose by or under a law of the Territory, or is an officer or employee of such an authority or body.
6H Person to whom application relates
For the purposes of this Act, an application by an agency to a Judge or nominated AAT member for a warrant relates to a particular person if, and only if, information has been, or is proposed to be, given to the Judge or nominated AAT member under Part 2‑5, in connection with the application, in order to satisfy the Judge or nominated AAT member, in relation to the person, of the matters referred to in:
(a) in the case of a warrant under section 48—paragraphs 46(1)(c) and (d), 46(4)(c), (d) and (e), or 46(7)(c) to (h), as the case requires; or
(b) in the case of any other Part 2‑5 warrant—paragraphs 46(1)(c) and (d), 46(4)(c), (d) and (e), 46(7)(c) to (h), 46A(1)(c) and (d), 46A(2A)(c), (d) and (e) or 46A(2C)(c) to (h), as the case requires; or
(c) in the case of a stored communications warrant—subparagraph 116(1)(d)(i) or (ii), as the case requires.
6J Proceeding by way of a prosecution for an offence
A reference in this Act to a proceeding by way of a prosecution for an offence includes a reference to a proceeding with a view to the committal of a person for trial for the offence.
6K Proceeding for confiscation or forfeiture or for pecuniary penalty
A reference in this Act to a proceeding, or to a proceeding under a law of the Commonwealth, for the confiscation or forfeiture of property, or for the imposition of a pecuniary penalty, in connection with the commission of a prescribed offence includes a reference to:
(a) a proceeding for the condemnation or recovery of a ship or aircraft, or of goods, seized under section 203 of the Customs Act 1901 in connection with the commission of an offence against:
(i) subsection 50(7) or subsection 112(2BC) of the Customs Act 1901; or
(ii) Division 307 of the Criminal Code; and
(b) a proceeding by way of an application for an order under subsection 243B(1) of the Customs Act 1901; and
(c) a proceeding by way of an application for a restraining order, or an order that is ancillary to a restraining order, under a prescribed Act of the Commonwealth, a State or the Australian Capital Territory.
6L Relevant proceeding
(1) A reference in this Act, in relation to an agency, or an eligible authority of a State, to a relevant proceeding is, in the case of the Australian Federal Police or a Police Force of a State, a reference to:
(a) a proceeding by way of a prosecution for a prescribed offence that is an offence against a law of the Commonwealth, or of that State, as the case may be; or
(b) a proceeding under a law of the Commonwealth, or of that State, as the case may be, for the confiscation or forfeiture of property, or for the imposition of a pecuniary penalty, in connection with the commission of a prescribed offence; or
(ba) in the case of the Australian Federal Police—a proceeding under, or a proceeding relating to a matter arising under:
(i) the main unexplained wealth provisions; or
(ii) the unexplained wealth legislation of a participating State, the Australian Capital Territory or the Northern Territory; or
(bb) in the case of the Police Force of a participating State, the Australian Capital Territory or the Northern Territory—a proceeding under, or a proceeding relating to a matter arising under, the unexplained wealth legislation of that State or Territory; or
(c) a proceeding for the taking of evidence as mentioned in paragraph 5B(1)(c), in so far as the proceeding relates to:
(i) a prescribed offence; or
(ii) a prescribed offence that is an offence against a law of that State;
as the case may be; or
(ca) a proceeding under, or in relation to a matter arising under, an organised crime control law of that State; or
(d) a proceeding for the extradition of a person as mentioned in paragraph 5B(1)(d), in so far as the proceeding relates to a prescribed offence that is an offence against a law of the Commonwealth, or of that State, as the case may be; or
(e) a police disciplinary proceeding that is a proceeding against a member of the Australian Federal Police, or of that Police Force, as the case may be; or
(ea) in the case of the Australian Federal Police:
(i) a proceeding against an AFP employee in so far as the proceeding relates to a decision by the Commissioner of Police to terminate the employment of the employee; or
(ii) a proceeding against a special member of the Australian Federal Police in so far as the proceeding relates to a decision by the Commissioner of Police to terminate the appointment of the member; or
(eb) in the case of a Police Force of a State—a proceeding against an officer or member of staff of that Police Force in so far as the proceeding relates to a decision by the Commissioner of that Police Force to terminate the appointment of the officer or member of staff; or
(f) any other proceeding (not being a proceeding by way of a prosecution for an offence) in so far as it relates to alleged misbehaviour, or alleged improper conduct, of an officer of the Commonwealth, or of that State, as the case may be.
(2) A reference in this Act, in relation to an agency, or an eligible authority of a State, to a relevant proceeding is:
(a) in the case of the National Anti‑Corruption Commission or the ACC—a reference to:
(i) a proceeding by way of a prosecution for a prescribed offence to which a prescribed investigation relates or related; or
(ii) a proceeding under a law of the Commonwealth or a State for the confiscation or forfeiture of property, or for the imposition of a pecuniary penalty, in connection with the commission of a prescribed offence to which a prescribed investigation relates or related; or
(aa) in the case of the Crime Commission—a reference to:
(i) a proceeding by way of a prosecution for a prescribed offence that is an offence against the law of New South Wales and to which a prescribed investigation relates or related; or
(ii) a proceeding under a law of New South Wales for the confiscation or forfeiture of property, or for the imposition of a pecuniary penalty, in connection with the commission of a prescribed offence; or
(b) in the case of the Independent Commission Against Corruption, the Inspector of the Independent Commission Against Corruption, the Law Enforcement Conduct Commission or the Inspector of the Law Enforcement Conduct Commission—a reference to a proceeding by way of a prosecution for a prescribed offence:
(i) that is an offence against the law of New South Wales; and
(ii) to which a prescribed investigation relates or related; or
(ba) in the case of the IBAC or the Victorian Inspectorate—a reference to a proceeding by way of a prosecution for a prescribed offence:
(i) that is an offence against the law of Victoria; and
(ii) to which a prescribed investigation relates or related; or
(c) in the case of the Crime and Corruption Commission—a reference to:
(i) a proceeding by way of a prosecution for a prescribed offence that is an offence against the law of Queensland and to which a prescribed investigation relates or related; or
(ii) a proceeding under a law of Queensland for the confiscation or forfeiture of property, or for the imposition of a pecuniary penalty, in connection with the commission of a prescribed offence; or
(d) in the case of the Corruption and Crime Commission or the Parliamentary Inspector of the Corruption and Crime Commission—a reference to a proceeding by way of a prosecution for a prescribed offence:
(i) that is an offence against the law of Western Australia; and
(ii) to which a prescribed investigation relates or related; or
(e) in the case of the Independent Commissioner Against Corruption—a reference to a proceeding by way of prosecution for a prescribed offence:
(i) that is an offence against the law of South Australia; and
(ii) to which a prescribed investigation relates or related.
(3) A reference in this Act, in relation to an agency that is an interception agency, to a relevant proceeding is a reference to a proceeding under, or a proceeding relating to a matter arising under:
(a) the main unexplained wealth provisions; or
(b) the unexplained wealth legislation of a participating State, the Australian Capital Territory or the Northern Territory.
6M Terminating the appointment of an officer
A reference in this Act to terminating, because of misbehaviour or improper conduct, the appointment of an officer of the Commonwealth or a State includes a reference to removing the officer from office on the ground of misbehaviour or improper conduct.
6N Declaration of staff members of State Police Forces
(1) This section applies to an agency that is the Police Force of a State.
(2) The Minister may make a written declaration that members of an agency included in a specified class of members of the agency occupy positions corresponding to those of AFP employees who are not members of the Australian Federal Police.
(3) Members included in the class of members of an agency specified in a declaration are referred to in this Act, in relation to the agency concerned, as staff members.
6P Identification of service
For the purposes of this Act (other than Schedule 1), a service may be identified by:
(a) a number assigned to it from time to time; or
(b) by any other unique identifying factor.
6Q Identification of telecommunications device
For the purposes of this Act, a telecommunications device may be identified by:
(a) a unique telecommunications number assigned to it from time to time; or
(b) any other unique identifying factor.
6R Communications Access Co‑ordinator
(1) In this Act:
Communications Access Co‑ordinator means:
(a) the Secretary of the Department; or
(b) if a person or body is covered by an instrument under subsection (2)—that person or body.
(2) The Minister may, by legislative instrument, specify a person or body for the purposes of paragraph (b) of the definition of Communications Access Co‑ordinator in subsection (1).
(3) Unless the context otherwise requires, an act done by or in relation to the Communications Access Co‑ordinator is taken to be an act done by or in relation to the Co‑ordinator on behalf of all the interception agencies and all the enforcement agencies.
6S Permitted purposes—integrity purposes
(1) For the purposes of paragraph (aaa) of the definition of permitted purpose in subsection 5(1), a purpose mentioned in column 2 of an item in the following table is a permitted purpose in relation to a Commonwealth agency, or the Immigration and Border Protection Department, as mentioned in column 1 of that item.
| Permitted purposes—integrity purposes |
| Item | Column 1—Commonwealth agency or Immigration and Border Protection Department | Column 2—Permitted purpose |
| 1 | (a) Australian Federal Police; or (b) ACC; or (c) National Anti‑Corruption Commission; or (d) Immigration and Border Protection Department. | A purpose connected with: (a) a decision about whether to apply for an integrity authority; or (b) designing, but not conducting, an integrity operation; or (c) an application for an integrity authority; or (d) granting an integrity authority. |
| 2 | (a) Australian Federal Police; or (b) ACC; or (c) National Anti‑Corruption Commission. | A purpose connected with an application for any warrant, authorisation or order, under a law of the Commonwealth, that is made for the purposes of an integrity operation. |
| 3 | (a) Australian Federal Police; or (b) ACC. | A purpose connected with disciplinary or legal action in relation to an eligible staff member of that agency, if arising out of, or otherwise related to, an integrity operation. |
Note: The Commonwealth agencies are the ACC, the Australian Federal Police and the National Anti‑Corruption Commission (see subsection 5(1)).
(2) In this section:
disciplinary or legal action, in relation to an eligible staff member of the Australian Federal Police or the ACC, means any of the following:
(a) action in respect of alleged misconduct of the staff member;
(b) termination of the employment or appointment of the staff member;
(c) a disciplinary proceeding in relation to the staff member, or a report of such a proceeding;
(d) the investigation of an offence suspected to have been committed by the staff member;
(e) a legal proceeding in relation to the staff member, or a report of such a proceeding.
Disciplinary or legal action also includes the consideration of whether an action or proceeding covered by this definition should be taken or brought.
disciplinary proceeding:
(a) means a proceeding of a disciplinary nature under a law of the Commonwealth or of a State or Territory; and
(b) includes action taken under Subdivision D of Division 3 of Part V of the Australian Federal Police Act 1979.
eligible staff member, of the Australian Federal Police or the ACC, means a staff member of that agency within the meaning of the National Anti‑Corruption Commission Act 2022 (see section 12 of that Act).
6T When a Part 5.3 supervisory order is taken to be in force
For the purposes of this Act, a Part 5.3 supervisory order is taken to be in force in relation to a person if:
(a) the order is a control order that has been made but has not yet come into force because:
(i) it has not been served on the person; or
(ii) the person is detained in custody in a prison (within the meaning of Part 5.3 of the Criminal Code); or
(b) the order is an extended supervision order or an interim supervision order that has been made but the period specified in the order under paragraph 105A.7A(4)(d) or 105A.9A(7)(c) of the Criminal Code has not yet begun.
6U Succeeding Part 5.3 supervisory orders
(1) If 2 or more successive control orders are made in relation to the same person, each later control order is a succeeding Part 5.3 supervisory order in relation to each earlier control order.
Note: If an interim control order is confirmed, the confirmed control order is a succeeding Part 5.3 supervisory order in relation to the interim control order (see the definition of control order in section 5).
(2) If an interim supervision order is made in relation to a person, any later extended supervision order in relation to the person is a succeeding Part 5.3 supervisory order in relation to an earlier interim supervision order.
(3) If 2 or more successive extended supervision orders or interim supervision orders are made in relation to the same person, each later extended supervision order or interim supervision order is a succeeding Part 5.3 supervisory order in relation to each earlier extended supervision order or interim supervision order.
Chapter 2—Interception of telecommunications
Part 2‑1—Prohibition on interception of telecommunications
7 Telecommunications not to be intercepted
(1) A person shall not:
(a) intercept;
(b) authorize, suffer or permit another person to intercept; or
(c) do any act or thing that will enable him or her or another person to intercept;
a communication passing over a telecommunications system.
(2) Subsection (1) does not apply to or in relation to:
(a) an act or thing done by an employee of a carrier in the course of his or her duties for or in connection with:
(i) the installation of any line, or the installation of any equipment, used or intended for use in connection with a telecommunications service; or
(ii) the operation or maintenance of a telecommunications system; or
(iii) the identifying or tracing of any person who has contravened, or is suspected of having contravened or being likely to contravene, a provision of Part 10.6 of the Criminal Code;
where it is reasonably necessary for the employee to do that act or thing in order to perform those duties effectively; or
(aa) the interception of a communication by another person lawfully engaged in duties relating to the installation, connection or maintenance of equipment or a line, where it is reasonably necessary for the person to intercept the communication in order to perform those duties effectively; or
(aaa) the interception of a communication by a person if:
(i) the person is authorised, in writing, by a responsible person for a computer network to engage in network protection duties in relation to the network; and
(ii) it is reasonably necessary for the person to intercept the communication in order to perform those duties effectively; or
(ab) the interception of a communication by a person lawfully engaged in duties relating to the installation, connection or maintenance of equipment used, or to be used, for the interception of communications under warrants; or
(ac) the interception of a communication where the interception results from, or is incidental to, action taken by an ASIO employee, in the lawful performance of his or her duties, for the purpose of:
(i) discovering whether a listening device is being used at, or in relation to, a particular place; or
(ii) determining the location of a listening device; or
(ad) the interception of a communication where the interception results from, or is incidental to, action taken by an ASIO affiliate, in accordance with the contract, agreement or other arrangement under which the ASIO affiliate is performing functions or services for the Organisation, for the purpose of:
(i) discovering whether a listening device is being used at, or in relation to, a particular place; or
(ii) determining the location of a listening device; or
(b) the interception of a communication under a warrant; or
(ba) the interception of a communication under subsection 25A(4) or (8), 27A(1) or (3C), 27E(2) or 27E(6) of the Australian Security Intelligence Organisation Act 1979; or
(bb) the interception of a communication under subsection 27E(7), 27KE(9) or 27KP(8) of the Surveillance Devices Act 2004; or
(bc) an act or thing done in compliance with an international production order (within the meaning of Schedule 1); or
(c) the interception of a communication pursuant to a request made, or purporting to be made, under subsection 30(1) or (2); or
(d) the interception of a communication under an authorisation under section 31A.
(2A) For the purposes of paragraphs (2)(a), (aa) and (aaa), in determining whether an act or thing done by a person was reasonably necessary in order for the person to perform his or her duties effectively, a court is to have regard to such matters (if any) as are specified in, or ascertained in accordance with, the regulations.
(3) Paragraph (2)(aaa) does not apply to a voice communication in the form of speech (including a communication that involves a recorded or synthetic voice).
(4) Subsection (1) does not apply to, or in relation to, an act done by an officer of an agency in relation to a communication if the following conditions are satisfied:
(a) the officer or another officer of the agency is a party to the communication; and
(b) there are reasonable grounds for suspecting that another party to the communication has:
(i) done an act that has resulted, or may result, in loss of life or the infliction of serious personal injury; or
(ii) threatened to kill or seriously injure another person or to cause serious damage to property; or
(iii) threatened to take his or her own life or to do an act that would or may endanger his or her own life or create a serious threat to his or her health or safety; and
(c) because of the urgency of the need for the act to be done, it is not reasonably practicable for an application for a Part 2‑5 warrant to be made.
(5) Subsection (1) does not apply to, or in relation to, an act done by an officer of an agency in relation to a communication if the following conditions are satisfied:
(a) the person to whom the communication is directed has consented to the doing of the act; and
(b) there are reasonable grounds for believing that that person is likely to receive a communication from a person who has:
(i) done an act that has resulted, or may result, in loss of life or the infliction of serious personal injury; or
(ii) threatened to kill or seriously injure another person or to cause serious damage to property; or
(iii) threatened to take his or her own life or to do an act that would or may endanger his or her own life or create a serious threat to his or her health or safety; and
(c) because of the urgency of the need for the act to be done, it is not reasonably practicable for an application for a Part 2‑5 warrant to be made.
(6) As soon as practicable after the doing of an act in relation to a communication under the provisions of subsection (4) or (5), an officer of the agency which is concerned with the communication shall cause an application for a Part 2‑5 warrant to be made in relation to the matter.
(6A) Subsection (6) does not apply if action has been taken under subsection (4) or (5) to intercept a communication, or cause it to be intercepted, and the action has ceased before it is practicable for an application for a Part 2‑5 warrant to be made.
(7) Where after considering an application made in relation to a matter arising under subsections (4) or (5) and (6) a Judge or nominated AAT member does not issue a warrant in relation to the application, the chief officer of the agency concerned shall ensure that no further action is taken by the agency to intercept the communication or to cause it to be intercepted.
(8) Subsections (4), (5), (6) and (7) only apply where the agency concerned is:
(a) the Australian Federal Police; or
(b) the Police Force of a State.
(9) The doing of an act mentioned in subparagraph (4)(b)(ii) or (iii) or (5)(b)(ii) or (iii) in a particular case is taken to constitute a serious offence, even if it would not constitute a serious offence apart from this subsection.
Note: See subsection (6). A Part 2‑5 warrant can only be issued for:
(a) the purposes of an investigation relating to the commission of one or more serious offences; or
(b) purposes relating to a Part 5.3 supervisory order or an application for a post‑sentence order.
(10) Subsection (9) has effect only to the extent necessary:
(a) to enable an application to be made for the purposes of subsection (6); and
(b) to enable a decision to be made on such an application and, if a Judge so decides, a Part 2‑5 warrant to be issued; and
(c) to enable this Act to operate in relation to a Part 2‑5 warrant issued on such an application.
Part 2‑2—Warrants authorising the Organisation to intercept telecommunications
9 Issue of telecommunications service warrants by Attorney‑General
(1) Where, upon receipt by the Attorney‑General of a request by the Director‑General of Security for the issue of a warrant under this section in respect of a telecommunications service, the Attorney‑General is satisfied that:
(a) the telecommunications service is being or is likely to be:
(i) used by a person engaged in, or reasonably suspected by the Director‑General of Security of being engaged in, or of being likely to engage in, activities prejudicial to security; or
(ia) the means by which a person receives or sends a communication from or to another person who is engaged in, or reasonably suspected by the Director‑General of Security of being engaged in, or of being likely to engage in, such activities; or
(ii) used for purposes prejudicial to security; and
(b) the interception by the Organisation of communications made to or from the telecommunications service will, or is likely to, assist the Organisation in carrying out its function of obtaining intelligence relating to security;
the Attorney‑General may, by warrant under his or her hand, authorize persons approved under section 12 in respect of the warrant to intercept, subject to any conditions or restrictions that are specified in the warrant, communications that are being made to or from that service and such a warrant may authorize entry on any premises specified in the warrant for the purpose of installing, maintaining, using or recovering any equipment used to intercept such communications.
Note: Subparagraph (a)(ia)—subsection (3) restricts the issuing of warrants if subparagraph (a)(ia) applies.
(1A) The reference in paragraph (1)(b) to the interception of communications made to or from a telecommunications service includes a reference to the accessing of the communications as stored communications after they have ceased to pass over a telecommunications system.
(2) A request by the Director‑General of Security for the issue of a warrant in respect of a telecommunications service:
(a) shall include a description of the service sufficient to identify it, including:
(i) the name, address and occupation of the subscriber (if any) to the service; and
(ii) the number (if any) allotted to the service by a carrier; and
(b) shall specify the facts and other grounds on which the Director‑General of Security considers it necessary that the warrant should be issued and, where relevant, the grounds on which the Director‑General of Security suspects a person of being engaged in, or of being likely to engage in, activities prejudicial to security.
(3) The Attorney‑General must not issue a warrant in a case in which subparagraph (1)(a)(ia) applies unless he or she is satisfied that:
(a) the Organisation has exhausted all other practicable methods of identifying the telecommunications services used, or likely to be used, by the other person referred to in subparagraph (1)(a)(ia); or
(b) interception of communications made to or from a telecommunications service used or likely to be used by that person would not otherwise be possible.
9A Issue of named person warrants by Attorney‑General
(1) Upon receiving a request by the Director‑General of Security for the issue of a warrant under this section in respect of a person, the Attorney‑General may, under his or her hand, issue a warrant in respect of the person if the Attorney‑General is satisfied that:
(a) the person is engaged in, or reasonably suspected by the Director‑General of Security of being engaged in, or of being likely to engage in, activities prejudicial to security; and
(b) the interception by the Organisation of:
(i) communications made to or from telecommunications services used by the person; or
(ii) communications made by means of a particular telecommunications device or particular telecommunications devices used by the person;
will, or is likely to, assist the Organisation in carrying out its function of obtaining intelligence relating to security; and
(c) relying on a telecommunications service warrant to obtain the intelligence would be ineffective.
(1A) The warrant authorises persons approved under section 12 in respect of the warrant to intercept, subject to any conditions or restrictions that are specified in the warrant:
(a) communications that are being made to or from any telecommunications service that the person is using, or is likely to use; or
(b) communications that are being made by means of a telecommunications device or telecommunications devices, identified in the warrant, that the person is using, or is likely to use.
Note: Subsection (3) restricts the issuing of a warrant authorising interception of communications made by means of a telecommunications device or telecommunications devices identified in the warrant.
(1B) The warrant may authorise entry on any premises specified in the warrant for the purpose of installing, maintaining, using or recovering any equipment used to intercept such communications.
(1C) The reference in paragraph (1)(b) to the interception of communications made to or from a telecommunications service includes a reference to the accessing of the communications as stored communications after they have ceased to pass over a telecommunications system.
(2) A request by the Director‑General of Security for the issue of a warrant in respect of a person:
(a) must include the name or names by which the person is known; and
(b) must include details (to the extent these are known to the Director‑General of Security) sufficient to identify the telecommunications services the person is using, or is likely to use; and
(ba) if the warrant would authorise interception of communications made by means of a telecommunications device or telecommunications devices identified in the warrant—must include details (to the extent these are known to the Director‑General of Security) sufficient to identify the telecommunications device or telecommunications devices that the person is using, or is likely to use; and
(c) must specify the facts and other grounds on which the Director‑General of Security considers it necessary that the warrant should be issued, including the grounds on which the Director‑General of Security suspects the person of being engaged in, or of being likely to engage in, activities prejudicial to security.
(3) The Attorney‑General must not issue a warrant that authorises interception of communications made by means of a telecommunications device or telecommunications devices identified in the warrant unless he or she is satisfied that:
(a) there are no other practicable methods available to the Organisation at the time of making the application to identify the telecommunications services used, or likely to be used, by the person in respect of whom the warrant would be issued; or
(b) interception of communications made to or from a telecommunications service used, or likely to be used, by that person would not otherwise be practicable.
9B Provisions applying to warrants issued under section 9 or 9A
Request must be forwarded in writing
(1) Where the Director‑General of Security makes a request, otherwise than in writing, for the issue of a warrant under section 9 or 9A, he or she must forthwith forward to the Attorney‑General a request in writing for the warrant.
Warrants authorising entry
(2) Where a warrant under section 9 or 9A authorises entry on premises, the warrant:
(a) must state whether entry is authorised to be made at any time of the day or night or only during specified hours; and
(b) may, if the Attorney‑General thinks fit—provide that entry may be made without permission first being sought or demand first being made, and may authorise measures that he or she is satisfied are necessary for that purpose.
Length of time warrant remains in force
(3) A warrant under section 9 or 9A must specify the period for which it is to remain in force. The warrant may be revoked by the Attorney‑General at any time before the end of the specified period.
(3A) The specified period must not exceed:
(a) if subparagraph 9(1)(a)(ia) applies—3 months; or
(b) otherwise—6 months.
Issue of further warrant
(4) Subsection (3) does not prevent the issue of a further warrant in respect of a telecommunications service or a person (as the case may be) in relation to which or whom a warrant has, or warrants have, previously been issued.
10 Issue of warrant by Director‑General of Security in emergency for Organisation to intercept telecommunications
(1) Where:
(a) the Director‑General of Security has forwarded or made a request to the Attorney‑General for the issue of a warrant under section 9 in respect of a telecommunications service or under section 9A in respect of a person;
(b) the Attorney‑General has not, to the knowledge of the Director‑General of Security, made a decision with respect to the request and has not, within the preceding period of 3 months, refused to issue a warrant under section 9 in respect of the telecommunications service or under section 9A in respect of a person (as the case requires);
(c) the Director‑General of Security has not, within the preceding period of 3 months, issued a warrant under this section in respect of the telecommunications service or person (as the case requires); and
(d) the Director‑General of Security is satisfied:
(i) that the facts of the case would justify the issue of a warrant by the Attorney‑General; and
(ii) that, if the interception to which the request relates does not commence before a warrant can be issued and made available by the Attorney‑General, security will be, or is likely to be, seriously prejudiced;
the Director‑General of Security may, by warrant under his or her hand, authorize persons approved under section 12 in respect of the warrant to intercept, subject to any conditions or restrictions that are specified in the warrant, communications that are being made to or from that service, or communications of that person (as the case requires), and such a warrant may authorize entry on any premises specified in the warrant for the purpose of installing, maintaining, using or recovering any equipment used to intercept such communications.
(1A) The reference in subparagraph (1)(d)(ii) to the interception not commencing includes a reference to the communications, that were to be intercepted, not being accessed as stored communications after they have ceased to pass over a telecommunications system.
(2) Where a warrant under this section authorizes entry on premises, the warrant shall state whether entry is authorized to be made at any time of the day or night or only during specified hours and may, if the Director‑General of Security thinks fit, provide that entry may be made without permission first being sought or demand first being made, and authorize measures that he or she is satisfied are necessary for that purpose.
(3) A warrant under this section shall specify the period for which it is to remain in force, being a period that does not exceed 48 hours, but may be revoked by the Attorney‑General at any time before the expiration of the period so specified.
(4) Where the Director‑General of Security issues a warrant under this section, he or she shall forthwith furnish to the Attorney‑General:
(a) a copy of the warrant; and
(b) a statement of the grounds on which he or she is satisfied as to the matters referred to in subparagraph (1)(d)(ii).
(5) The Director‑General must, within 3 working days after issuing a warrant under this section, give a copy of the warrant to the Inspector‑General of Intelligence and Security.
11A Telecommunications service warrant for collection of foreign intelligence
(1) Where:
(a) the Director‑General of Security gives a notice in writing to the Attorney‑General requesting the Attorney‑General to issue a warrant under this section authorising persons approved under section 12 in respect of the warrant to do acts or things referred to in subsection 9(1) in relation to a particular telecommunications service for the purpose of obtaining foreign intelligence relating to a matter specified in the notice; and
(b) the Attorney‑General is satisfied, on the basis of advice received from the Minister for Defence or the Minister for Foreign Affairs, that the collection of foreign intelligence relating to that matter is in the interests of Australia’s national security, Australia’s foreign relations or Australia’s national economic well‑being;
the Attorney‑General may, by warrant under his or her hand, authorise persons approved under section 12 in respect of the warrant, subject to any conditions or restrictions that are specified in the warrant, to do such of those acts or things in relation to that telecommunications service as the Attorney‑General considers appropriate in the circumstances and are specified in the warrant, for the purpose of obtaining that intelligence.
(2) A request by the Director‑General of Security for the issue of a warrant under this section:
(a) shall include a description of the service sufficient to identify it, including:
(i) the name, address and occupation of the subscriber (if any) to the service; and
(ii) the number (if any) allotted to the service by a carrier; and
(b) shall specify the facts and other grounds on which the Director‑General of Security considers it necessary that the warrant should be issued.
(3) If the Director‑General of Security requests the issue of a warrant under this section for the purpose of collecting information concerning a person who is an Australian citizen or permanent resident (see subsection 11D(5)), then:
(a) the Director‑General must include details in the request about the grounds on which the Director‑General suspects that the person is acting for, or on behalf of, a foreign power; and
(b) the Attorney‑General must not issue the warrant unless the Attorney‑General is satisfied that the person is, or is reasonably suspected by the Director‑General of, acting for, or on behalf of, a foreign power.
Note: Warrants are obtained under this section for the purpose of performing the function set out in paragraph 17(1)(e) of the Australian Security Intelligence Organisation Act 1979.
11B Named person warrant for collection of foreign intelligence
(1) The Attorney‑General may, under his or her hand, issue a warrant in respect of a person if:
(a) the Director‑General of Security gives a notice in writing to the Attorney‑General requesting the Attorney‑General to issue a warrant under this section authorising persons approved under section 12 in respect of the warrant to do acts or things referred to in subsection 9A(1A) in relation to:
(i) communications that are being made to or from any telecommunications service that a person or foreign organisation is using, or is likely to use; or
(ii) communications that are being made by means of a particular telecommunications device or particular telecommunications devices that a person or foreign organisation is using, or is likely to use;
for the purpose of obtaining foreign intelligence relating to a matter specified in the notice; and
(b) the Attorney‑General is satisfied, on the basis of advice received from the Minister for Defence or the Minister for Foreign Affairs, that:
(i) the obtaining of foreign intelligence relating to that matter is in the interests of Australia’s national security, Australia’s foreign relations or Australia’s national economic well‑being; and
(ii) it is necessary to intercept the communications of the person or foreign organisation in order to obtain the intelligence referred to in paragraph (a); and
(iii) relying on a telecommunications service warrant to obtain the intelligence would be ineffective.
(1A) The warrant authorises persons approved under section 12 in respect of the warrant to intercept, subject to any conditions or restrictions that are specified in the warrant:
(a) communications that are being made to or from any telecommunications service that the person or foreign organisation is using, or is likely to use; or
(b) communications that are being made by means of a telecommunications device or telecommunications devices, identified in the warrant, that the person or foreign organisation is using, or is likely to use.
Note: Subsection (3) restricts the issuing of a warrant authorising interception of communications made by means of a telecommunications device or telecommunications devices identified in the warrant.
(1B) The warrant may authorise entry on any premises specified in the warrant for the purpose of installing, maintaining, using or recovering any equipment used to intercept such communications.
(2) A request by the Director‑General of Security for the issue of a warrant in respect of a person or foreign organisation:
(a) must include the name or names by which the person or organisation is known; and
(b) must include details (to the extent these are known to the Director‑General of Security) sufficient to identify the telecommunications services the person or foreign organisation is using, or is likely to use; and
(ba) if the warrant would authorise interception of communications made by means of a telecommunications device or telecommunications devices identified in the warrant—must include details (to the extent these are known to the Director‑General of Security) sufficient to identify the telecommunications device or telecommunications devices that the person is using, or is likely to use; and
(c) must specify the facts and other grounds on which the Director‑General of Security considers it necessary that the warrant should be issued.
(3) The Attorney‑General must not issue a warrant that authorises interception of communications made by means of a telecommunications device or telecommunications devices identified in the warrant unless he or she is satisfied that:
(a) there are no other practicable methods available to the Organisation at the time of making the application to identify the telecommunications services used, or likely to be used, by the person or foreign organisation in respect of whom or which the warrant would be issued; or
(b) interception of communications made to or from a telecommunications service used, or likely to be used, by that person or foreign organisation would not otherwise be practicable.
(4) If the Director‑General of Security requests the issue of a warrant under this section for the purpose of collecting information concerning a person who is an Australian citizen or permanent resident (see subsection 11D(5)), then:
(a) the Director‑General must include details in the request about the grounds on which the Director‑General suspects that the person is acting for, or on behalf of, a foreign power; and
(b) the Attorney‑General must not issue the warrant unless the Attorney‑General is satisfied that the person is, or is reasonably suspected by the Director‑General of, acting for, or on behalf of, a foreign power.
Note: Warrants are obtained under this section for the purpose of performing the function set out in paragraph 17(1)(e) of the Australian Security Intelligence Organisation Act 1979.
11C Foreign communications warrant for collection of foreign intelligence
Issue of warrant
(1) Where:
(a) the Director‑General of Security gives a notice in writing to the Attorney‑General requesting the Attorney‑General to issue a warrant under this section authorising persons approved under section 12 in respect of the warrant to intercept communications for the purpose of obtaining foreign intelligence relating to a matter specified in the notice from foreign communications intercepted under the warrant; and
(b) the Attorney‑General is satisfied, on the basis of advice received from the Minister for Defence or the Minister for Foreign Affairs, that:
(i) the collection of foreign intelligence relating to that matter is in the interests of Australia’s national security, Australia’s foreign relations or Australia’s national economic well‑being; and
(ii) it is necessary to intercept communications in order to obtain that foreign intelligence from foreign communications intercepted under the warrant; and
(iii) relying on a telecommunications service warrant or a named person warrant to obtain the intelligence would be ineffective;
the Attorney‑General may, by warrant under his or her hand, authorise persons approved under section 12 in respect of the warrant, subject to any conditions or restrictions that are specified in the warrant, to intercept communications for the purpose of obtaining that foreign intelligence from foreign communications intercepted under the warrant.
(2) A warrant under subsection (1) must not authorise the interception of any communications except for the purpose of obtaining foreign intelligence relating to a matter specified in the notice referred to in subsection (1) from foreign communications intercepted under the warrant.
(3) A request by the Director‑General of Security for the issue of a warrant under this section must:
(a) specify how the interception of communications is proposed to be conducted under the warrant, including how the risk of intercepting domestic communications will be minimised; and
(b) specify the facts and other grounds on which the Director‑General of Security considers it necessary that the warrant should be issued, including the reasons the information cannot be collected by other means.
(3A) If the Director‑General of Security requests the issue of a warrant under this section for the purpose of collecting information concerning a person who is an Australian citizen or permanent resident (see subsection 11D(5)), then:
(a) the Director‑General must include details in the request about the grounds on which the Director‑General suspects that the person is acting for, or on behalf of, a foreign power; and
(b) the Attorney‑General must not issue the warrant unless the Attorney‑General is satisfied that the person is, or is reasonably suspected by the Director‑General of, acting for, or on behalf of, a foreign power.
(4) The Attorney‑General must not issue a warrant under this section if the mandatory procedure under subsection (6) is not in force.
(4A) If a warrant is issued under this section, then the Director‑General of Security must prepare a notice that:
(a) is addressed to any carrier who operates any part of the telecommunications system that is covered by the warrant; and
(b) gives a description that is sufficient to identify that part of the telecommunications system covered by the warrant;
unless the Attorney‑General is satisfied that the giving of such a notice would not be in the interests of national security or reasonable in the circumstances.
Destruction of irrelevant intercepted communications
(5) Where:
(a) a communication is intercepted under a warrant under this section; and
(b) the Director‑General of Security is satisfied that the communication is not relevant to the purposes specified in the warrant;
the Director‑General of Security must:
(c) cause all records of the communication to be destroyed (unless the communication relates, or appears to relate, to activities that present a significant risk to a person’s life); and
(d) cause the Inspector‑General of Intelligence and Security to be notified of the communication if all records of the communication are not caused to be destroyed because the communication relates, or appears to relate, to activities that present a significant risk to a person’s life.
Mandatory procedure for all intercepted communications
(6) The Attorney‑General must, in writing, issue a mandatory procedure (the mandatory procedure):
(a) for screening communications intercepted under a warrant under this section for the purpose of identifying any domestic communications that may have been intercepted; and
(b) for destroying all records of any domestic communication so identified from that screening (other than a domestic communication that relates, or appears to relate, to activities that present a significant risk to a person’s life); and
(c) for notifying the Inspector‑General of Intelligence and Security of any identified domestic communication if all records of the communication are not destroyed because the communication relates, or appears to relate, to activities that present a significant risk to a person’s life.
(7) The mandatory procedure may also deal with other matters relating to communications intercepted under a warrant under this section.
(8) A person must comply with the mandatory procedure to the extent that it applies to the person.
(9) Before issuing or varying the mandatory procedure, the Attorney‑General must consult:
(a) the Minister for Defence; and
(b) the Minister for Foreign Affairs; and
(c) the Inspector‑General of Intelligence and Security; and
(d) the Director‑General of Security.
(10) The Attorney‑General must review the mandatory procedure as soon as practicable after:
(a) the end of the first anniversary of the mandatory procedure being issued; and
(b) every 3‑year period after that;
but the Attorney‑General may review the mandatory procedure at any other time as well.
(10A) The Attorney‑General must, as soon as practicable, cause the Parliamentary Joint Committee on Intelligence and Security to be notified about the issuing or varying of the mandatory procedure.
(10B) The Parliamentary Joint Committee on Intelligence and Security may request a briefing on the mandatory procedure and on any variations to it.
(11) The mandatory procedure, or any variation of the mandatory procedure, is not a legislative instrument.
(12) For the purposes of this section, a domestic communication is a communication that is not a foreign communication.
Note: Warrants are obtained under this section for the purpose of performing the function set out in paragraph 17(1)(e) of the Australian Security Intelligence Organisation Act 1979.
11D Provisions applying to foreign intelligence warrants
Warrants authorising entry
(1) Where a warrant under section 11A or 11B authorises entry on premises, the warrant:
(a) must state whether entry is authorised to be made at any time of the day or night or only during specified hours; and
(b) may, if the Attorney‑General thinks fit—provide that entry may be made without permission first being sought or demand first being made, and may authorise measures that he or she is satisfied are necessary for that purpose.
Length of time warrant remains in force
(2) A warrant under section 11A, 11B or 11C must specify the period for which it is to remain in force. The period must not exceed 6 months, and the warrant may be revoked by the Attorney‑General at any time before the end of the specified period.
Issue of further warrant
(3) Subsection (2) does not prevent the issue of a further warrant in respect of a telecommunications service, a person or a part of a telecommunications system (as the case may be) in relation to which or whom a warrant has, or warrants have, previously been issued.
Part 10.6 of the Criminal Code
(4) Nothing in Part 10.6 of the Criminal Code is to be taken to prohibit the doing of anything under, or for the purposes of, a warrant under section 11A, 11B or 11C.
Note: Part 10.6 of the Criminal Code deals with offences relating to telecommunications.
Information about Australian citizens or permanent residents
(5) The Director‑General must not request the issue of a warrant under section 11A, 11B or 11C for the purpose of collecting information concerning an Australian citizen or permanent resident, unless the Director‑General reasonably suspects that the person is acting for, or on behalf of, a foreign power.
(6) The reference in subsection 11A(1), 11B(1) and 11C(1) to conditions or restrictions includes a reference to conditions or restrictions designed to minimise:
(a) the obtaining by the Organisation, pursuant to a warrant issued under section 11A, 11B or 11C (as the case may be), of information that is not publicly available concerning Australian citizens or permanent residents; or
(b) the retention of information of that kind.
12 Persons authorised to intercept communications for Organisation
(1) The Director‑General of Security, or an ASIO employee or ASIO affiliate appointed by the Director‑General of Security, in writing, to be an authorizing officer for the purposes of this subsection, may, by writing under his or her hand, approve any persons, or class of persons, as persons authorized to exercise, on behalf of the Organisation, the authority conferred by Part 2‑2 warrants.
(2) To avoid doubt, and without limiting subsection (1), if approval is given to a person or class of persons holding, occupying or performing the duties of an office or position, then the approval extends to such an office or position that comes into existence after the approval is given.
(3) Subsection (2) does not, by implication, affect the interpretation of any other provision of this Act.
(4) The Director‑General of Security must, as soon as practicable after the authority conferred by a Part 2‑2 warrant is exercised on behalf of the Organisation, cause one or more written records to be made that identify each person who exercised that authority.
13 Discontinuance of interception before expiration of warrant
Where, before a Part 2‑2 warrant ceases to be in force, the Director‑General of Security is satisfied that the grounds on which the warrant was issued have ceased to exist, he or she shall forthwith inform the Attorney‑General accordingly and take such steps that are necessary to ensure that the interception of communications under the warrant is discontinued.
14 Certain records retained by Organisation to be destroyed
Where:
(a) a record or copy has been made of a communication intercepted by virtue of a Part 2‑2 warrant;
(b) the record or copy is in the possession or custody, or under the control, of the Organisation; and
(c) the Director‑General of Security is satisfied that the record or copy is not required, and is not likely to be required, in or in connection with the performance by the Organisation of its functions or the exercise of its powers (including the powers conferred by sections 64 and 65);
the Director‑General of Security shall cause the record or copy to be destroyed.
Note: See subsection 11C(5) and paragraph 11C(6)(b) for additional rules about the destruction of material obtained under a warrant issued under section 11C.
15 How warrants etc. to be dealt with
(1) Where the Attorney‑General issues or revokes a Part 2‑2 warrant, he or she shall cause:
(a) the Director‑General of Security to be informed forthwith of the issue of the warrant or of the revocation, as the case may be; and
(b) the warrant or the instrument of revocation, as the case may be, to be forwarded, as soon as practicable, to the Director General of Security.
(1A) Where:
(a) the Director‑General of Security is informed under paragraph (1)(a) of the issue of a warrant (other than a warrant under section 11C); and
(b) it is proposed, under the warrant, to intercept communications made to or from a telecommunications service while they are passing over a telecommunications system operated by a carrier; and
(ba) the execution of the warrant will involve the taking of action by the carrier or its employees;
the Director‑General of Security shall cause:
(c) an authorised representative of that carrier to be informed forthwith of the issue of the warrant; and
(d) where, under paragraph (1)(b), the Director‑General of Security receives the warrant—a copy of the warrant, certified in writing by a certifying person to be a true copy of the warrant, to be given as soon as practicable to that authorised representative.
Note: Subsection 15(7) deals with cases where the Director‑General of Security is informed of the issue of a warrant under section 11C.
(1B) Where:
(a) an authorised representative of a carrier has been informed, under subsection (1A), of the issue of a warrant; and
(b) the Director‑General of Security is informed under paragraph (1)(a) that the warrant has been revoked;
the Director‑General of Security shall cause:
(c) that authorised representative to be informed forthwith of the revocation; and
(d) where, under paragraph (1)(b), the Director‑General of Security receives the instrument of revocation—a copy of the instrument, certified in writing by a certifying person to be a true copy of the instrument, to be forwarded as soon as practicable to that authorised representative.
(3) The Attorney‑General shall record on each request in writing for the issue of a warrant received by him or her from the Director‑General of Security his or her decision with respect to the request and shall cause the request to be returned to the Director‑General of Security.
(4) Where:
(a) the Director‑General of Security issues a warrant under section 10; and
(b) it is proposed, under the warrant, to intercept communications made to or from a telecommunications service while they are passing over a telecommunications system operated by a carrier; and
(ba) the execution of the warrant will involve the taking of action by the carrier or its employees;
the Director‑General of Security shall cause:
(c) an authorised representative of that carrier to be informed forthwith of the issuing of the warrant; and
(d) a copy of the warrant, certified in writing by the Director‑General, or a Deputy Director‑General of Security, to be a true copy of the warrant, to be given as soon as practicable to that authorised representative.
(6) The Director‑General of Security shall cause to be kept in the Organisation’s records:
(a) each warrant issued under section 10;
(c) each warrant, and each instrument of revocation, received under this section by the Director‑General from the Attorney‑General; and
(e) each request, and each document, returned to the Director‑General by the Attorney‑General.
(7) Where:
(a) the Director‑General of Security is informed under paragraph (1)(a) of the issue of a warrant under section 11C; and
(b) it is proposed, under the warrant, to intercept communications made while they are passing over a telecommunications system operated by a carrier; and
(ba) the carrier is required to be given a notice under subsection 11C(4A) in relation to the warrant;
the Director‑General of Security must cause:
(c) an authorised representative of that carrier to be informed forthwith of the issue of the warrant; and
(d) that authorised representative to be given the notice under subsection 11C(4A) as soon as reasonably practicable.
16 Additional requirements for named person warrants
(1) Where:
(a) an authorised representative of a carrier has been given a copy of a warrant under section 9A or 11B; and
(aa) the warrant is not a warrant that authorises interception of communications made by means of a telecommunications device or telecommunications devices identified in the warrant; and
(b) it is proposed, under the warrant, to intercept communications made to or from a telecommunications service operated by the carrier; and
(c) the service was not identified in the warrant;
a certifying person must cause that authorised representative to be given, as soon as practicable, a description in writing of the service sufficient to identify it.
(1A) Where:
(a) an authorised representative of a carrier has been given a copy of a warrant under section 9A or 11B; and
(b) the warrant is a warrant that authorises interception of communications made by means of a telecommunications device or telecommunications devices identified in the warrant; and
(c) it is proposed, under the warrant, to intercept, by means of a telecommunications device, communications made to or from a telecommunications service operated by the carrier; and
(d) the device was not identified in the warrant;
a certifying person must cause that authorised representative to be given, as soon as practicable, a description in writing of the device sufficient to identify it.
(2) Where:
(a) an authorised representative of a carrier has been given a description of a telecommunications service to or from which, or a telecommunications device or telecommunications devices by means of which, communications are proposed to be intercepted under a warrant under section 9A or 11B; and
(b) the Director‑General of Security is satisfied that the interception of communications to or from that service, or by means of the device or devices, is no longer required;
a certifying person must cause:
(c) that authorised representative to be informed of the fact immediately; and
(d) confirmation in writing of the fact to be given as soon as practicable to that authorised representative.
17 Reports to be made to Attorney‑General on results of interception
(1) The Director‑General of Security shall furnish to the Attorney‑General, in respect of each Part 2‑2 warrant, within 3 months after the expiration or revocation, whichever first occurs, of the warrant, a report in writing on the extent to which the interception of communications under the warrant has assisted the Organisation in carrying out its functions.
(2) A report under subsection (1) in relation to a warrant issued under section 9A or 11B must include details of the telecommunications service to or from which each intercepted communication was made.
18 Evidentiary certificates
(1) The following:
(a) the Managing Director of a carrier;
(b) the secretary of a carrier;
(c) an employee of a carrier authorised in writing for the purposes of this paragraph by the Managing Director or the secretary of the carrier;
may issue a written certificate signed by him or her setting out such facts as he or she considers relevant with respect to acts or things done by, or in relation to, employees of the carrier in order to enable a warrant to be executed.
(2) A document purporting to be a certificate issued under subsection (1) and purporting to be signed by the Managing Director or secretary, or an employee, of a carrier is to be received in evidence in an exempt proceeding without further proof and is, in an exempt proceeding, conclusive evidence of the matters stated in the document.
(3) The Director‑General of Security or the Deputy Director‑General of Security may issue a written certificate signed by him or her setting out such facts as he or she considers relevant with respect to acts or things done:
(a) in order to enable, or in connection with enabling, a warrant issued under this Part to be executed; or
(b) in connection with the execution of a warrant issued under this Part.
(4) The Director‑General of Security or the Deputy Director‑General of Security may issue a written certificate signed by him or her setting out such facts as he or she considers relevant with respect to anything done by an ASIO employee or an ASIO affiliate:
(a) in connection with the execution of a warrant issued under this Part; or
(b) in connection with:
(i) the communication by a person to another person of; or
(ii) the making use of; or
(iii) the making of a record of; or
(iv) the custody of a record of; or
(v) the giving in evidence of;
information obtained by the execution of such a warrant.
(5) A document purporting to be a certificate issued under subsection (3) or (4) by the Director‑General of Security or the Deputy Director‑General of Security and to be signed by him or her is to be received in evidence in an exempt proceeding without further proof and is, in an exempt proceeding, prima facie evidence of the matters stated in the document.
(6) In subsections (1) and (2), a reference to the Managing Director or secretary of a carrier includes a reference to the Managing Director or secretary of a body corporate of which the carrier is a subsidiary.
(7) For the purposes of this section, the question whether a body corporate is a subsidiary of another body corporate is to be determined in the same manner as the question is determined under the Corporations Act 2001.
Part 2‑3—Emergency requests authorising officers of a carrier to intercept telecommunications
30 Emergency requests
(1) Where:
(a) a person is a party to a communication passing over a telecommunications system;
(b) as a result of information conveyed by another party to the communication (in this section referred to as the caller) and of any other matters, the first‑mentioned person forms the honest belief that either of the following emergencies exist:
(i) another person (whether or not the caller) is dying, is being seriously injured or has been seriously injured;
(ii) another person (whether or not the caller) is likely to die or be seriously injured; and
(c) the first‑mentioned person does not know the location of the caller;
the first‑mentioned person may:
(d) in a case where the first‑mentioned person:
(i) is a member of a police force; and
(ii) is of the opinion that tracing the location of the caller is likely to be of assistance in dealing with the emergency;
request, or cause another member of a police force to request, an employee of a carrier to intercept, or to cause other employees of the carrier to intercept, the communication for the purposes of tracing the location of the caller; or
(e) in a case where the first‑mentioned person is not a member of a police force—inform, or cause another person to inform, a member of a police force of the matters referred to in paragraphs (a), (b) and (c).
(2) Where a member of a police force is so informed, the member may, if the member is of the opinion that tracing the location of the caller is likely to be of assistance in dealing with the emergency, request an employee of a carrier to intercept, or to cause other employees of the carrier to intercept, the communication for the purposes of tracing the location of the caller.
(3) Where, pursuant to a request made, or purporting to be made, by a member of a police force under subsection (1) or (2), an employee of a carrier intercepts a communication passing over a telecommunications system for the purpose of tracing the location of the caller, the employee shall:
(a) communicate, or cause another employee of the carrier to communicate, the location of the caller to the person who made the request or to any other member of a police force; and
(b) communicate particulars of the interception to the Managing Director of the carrier.
(4) As soon as practicable after making to an employee of a carrier a request under, or purporting to be under, subsection (1) or (2), a member of a police force shall give, or cause another member of a police force to give, to the Managing Director of the carrier a written confirmation of the request that sets out the information given by the first‑mentioned member to that employee in connection with the request.
Part 2‑4—Authorisation of interception for developing and testing interception capabilities
31 Applications for authorisation
(1) The head (however described) of a security authority that has functions that include activities relating to developing or testing technologies, or interception capabilities, or a person acting as that head, may request the Attorney‑General to authorise, under section 31A, interception of communications passing over a telecommunications system:
(a) if one or more carriers are specified in the request for the purposes of this paragraph—by:
(i) employees of the security authority authorised under section 31B; and
(ii) employees of those carriers; or
(b) if no carriers are specified in the request for the purposes of paragraph (a)—by employees of the security authority authorised under section 31B.
(2) The request:
(a) must be in writing; and
(b) must include details of the development or testing of technologies, or interception capabilities, in relation to which authorisation is sought; and
(c) must include details of the extent to which the development or testing would involve, or would be likely to involve, interception of communications passing over a telecommunications system; and
(d) must refer to the functions of the authority that the development or testing would support; and
(e) must state the grounds for seeking the authorisation; and
(f) must summarise the outcomes of any previous authorisations given to the authority under section 31A in relation to the technology or interception capability that is the subject of the application; and
(g) must nominate the period (not exceeding 6 months) for which the authorisation is sought to be in force.
31A Attorney‑General may authorise interception for developing and testing interception capabilities
(1) Upon receiving the request, the Attorney‑General may authorise interception of communications passing over a telecommunications system:
(a) if one or more carriers are specified in the request for the purposes of paragraph 31(1)(a)—by:
(i) employees of the security authority authorised under section 31B; and
(ii) employees of those carriers; or
(b) if no carriers are specified in the request for the purposes of paragraph 31(1)(a)—by employees of the security authority authorised under section 31B.
(2) The authorisation is subject to:
(a) a condition prohibiting:
(i) interception of communications passing over a telecommunications system except for the purposes of development or testing of technologies, or interception capabilities; or
(ii) communicating, using or recording such communications except for such purposes; and
(b) any other conditions specified in the authorisation.
(3) The authorisation must be in writing and must specify the period (not exceeding 6 months) for which it will have effect.
(4) The head (however described) of the security authority, or a person acting as that head, must ensure that a copy of the authorisation is kept by the authority and is available for inspection on request by the Minister who is responsible for the authority.
(4A) If paragraph (1)(a) applies to the authorisation, this Part does not require that an authorised interception must involve:
(a) one or more employees of the security authority referred to in that paragraph; and
(b) one or more employees of a carrier referred to in that paragraph;
acting together or in the presence of each other.
(5) An authorisation given under subsection (1) is not a legislative instrument.
31AA Carrier to be notified of authorisation etc.
(1) If:
(a) the Attorney‑General gives a section 31A authorisation in response to an application made by:
(i) the head (however described) of a security authority; or
(ii) a person acting as that head; and
(b) the authorisation covers the employees of a carrier;
the head (however described) of the security authority, or a person acting as that head, must cause a copy of the authorisation to be given to the authorised representative of the carrier as soon as practicable.
(2) If:
(a) the Attorney‑General has given a section 31A authorisation in response to an application made by:
(i) the head (however described) of a security authority; or
(ii) a person acting as that head; and
(b) the authorisation is varied or revoked; and
(c) the authorisation covers the employees of a carrier;
the head (however described) of the security authority, or a person acting as that head, must cause:
(d) an authorised representative of the carrier to be immediately informed of the variation or revocation; and
(e) a copy of the variation or revocation to be given to the authorised representative as soon as practicable.
31B Authorisation of employees of a security authority
(1) The following persons:
(a) the head (however described) of a security authority;
(b) an officer of the security authority covered by an approval in force under subsection (2);
may, by writing, authorise employees of the authority for the purposes of this Part.
(2) The head (however described) of a security authority may, by writing, approve an officer of the authority for the purposes of paragraph (1)(b).
31C Destruction of records
If:
(a) information, or a record, that was obtained, in the course of developing or testing technologies or interception capabilities, by interception of communications passing over a telecommunications system is in a security authority’s possession; and
(b) the information or record is no longer required in relation to the development or testing;
the head (however described) of the security authority, or a person acting as that head, must cause the information or record to be destroyed as soon as practicable.
31D Reports to the Attorney‑General
The head (however described) of a security authority, or a person acting as that head, must give to the Attorney‑General, within 3 months after an authorisation under section 31A given to the authority ceases to have effect, a written report about:
(a) the outcome of the development or testing of technologies, or interception capabilities, in relation to which the authorisation was given; and
(b) the destruction of information or records under section 31C.
31E Employees of security authorities
(1) For the purposes of this Part:
(a) an ASIO employee is taken to be an employee of the Organisation; and
(b) an ASIO affiliate is taken to be an employee of the Organisation.
(2) For the purposes of this Part, if:
(a) a person is a staff member (within the meaning of the Intelligence Services Act 2001) of an agency (within the meaning of that Act); and
(b) the agency is a security authority;
the person is taken to be an employee of the security authority.
Part 2‑5—Warrants authorising agencies to intercept telecommunications
Division 2—Declaration of State Law Enforcement Authorities as Agencies
34 Declaration of an eligible authority of a State as an agency
Subject to section 35, the Minister may, by legislative instrument and at the request of the Premier of a State, declare an eligible authority of that State to be an agency for the purposes of this Act.
Note: The declaration may also authorise the eligible authority to apply for Part 5.3 warrants: see section 38A.
35 Preconditions for declaration
(1) The Minister shall not make a declaration under section 34 in relation to an eligible authority of a State unless he or she is satisfied that the law (in this subsection called the relevant law) of that State makes satisfactory provision:
(a) imposing on the chief officer of the eligible authority requirements corresponding to the requirements that section 80 (other than paragraphs 80(f) and (g)) and section 81 (other than paragraph 81(1)(h), and subsection 81(2), so far as that subsection relates to paragraph 81(1)(h)) impose on the chief officer of a Commonwealth agency; and
(c) requiring the chief officer of the eligible authority to give to a specified Minister (in this subsection called the responsible Minister) of that State, within 3 months after a warrant issued to the eligible authority ceases to be in force, a written report about:
(i) the use made by the eligible authority of information obtained by interceptions under the warrant; and
(ii) the communication of such information to persons other than officers of the eligible authority; and
(d) requiring the chief officer of the eligible authority to give to the responsible Minister as soon as practicable, and in any event within 3 months, after each 30 June, a written report that sets out such information as:
(i) Division 2 of Part 2‑8 requires to be set out in the Minister’s report under that Division relating to the year ending on that 30 June; and
(ii) can be derived from the eligible authority’s records; and
(e) requiring the responsible Minister to give to the Minister, as soon as practicable after a report of a kind referred to in paragraph (c) or (d) is given to the responsible Minister, a copy of the report; and
(f) requiring the chief officer of the eligible authority to cause a restricted record (whether made before or after the commencement of this section) that is in the possession of the eligible authority to be kept, except when it is being otherwise dealt with in accordance with this Act and the relevant law, in a secure place where it is not accessible to persons other than persons who are entitled so to deal with it; and
(g) requiring the chief officer of the eligible authority to cause a restricted record of a kind referred to in paragraph (f) to be destroyed forthwith where the chief officer is satisfied that the restricted record is not likely to be required for a permitted purpose in relation to the eligible authority, other than a purpose connected with an inspection of the kind referred to in paragraph (h) or with a report on such an inspection; and
(h) requiring regular inspections of the eligible authority’s records, for the purpose of ascertaining the extent of compliance by the officers of the eligible authority with the requirements referred to in paragraphs (a), (f) and (g) of this subsection, to be made by an authority of that State that is independent of the eligible authority and on which sufficient powers have been conferred to enable the independent authority to make a proper inspection of those records for that purpose; and
(ha) requiring that a person who performs a function or exercises a power under section 44A or 45 in relation to an application by an eligible authority for a warrant must not undertake an inspection of the eligible authority’s records for the purpose referred to in paragraph (h) in relation to a record of the eligible authority that relates to the application; and
(j) requiring an authority of that State that has made an inspection of the eligible authority’s interception records for the purpose referred to in paragraph (h) to report in writing to the responsible Minister about the results of the inspection; and
(k) empowering an authority of that State that, as a result of inspecting the eligible authority’s records for the purpose referred to in paragraph (h), is of the opinion that an officer of the eligible authority has contravened:
(i) a provision of this Act; or
(ii) a requirement referred to in paragraph (c);
to include in the report on the inspection a report on the contravention; and
(m) requiring the responsible Minister to give to the Minister, as soon as practicable after a report on an inspection of the kind referred to in paragraph (j) is given to the responsible Minister, a copy of the report.
(1A) Paragraphs (1)(f) and (g) do not apply to a restricted record that is a record of a communication that was intercepted under paragraph 7(2)(aaa).
(2) The Minister must not make a declaration under section 34 in relation to an eligible authority of a State unless the Minister is satisfied that that State has entered into an agreement to pay all expenses connected with the issue of warrants to the authority.
36 State laws requiring copies of documents to be given to responsible Minister
(1) Nothing in this Division is to be taken to preclude a law of a State from requiring the chief officer of the eligible authority to give to a specified Minister (the responsible Minister) of that State a copy of each warrant issued to the eligible authority, and of each instrument under section 52 or 57 revoking such a warrant.
(2) If a State makes a law of the kind mentioned in subsection (1), then, for the purposes of section 63AA, the chief officer of the eligible authority is taken to be communicating interception warrant information for the purposes of this Part by giving documents to the responsible Minister to comply with the requirement.
37 Revocation of declaration
(1) If requested by the Premier of a State to revoke a declaration in force under section 34 in relation to an eligible authority of that State, the Minister shall, by notice in writing published in the Gazette, revoke the declaration.
(2) Subject to subsection (1), the Minister may, by notice in writing published in the Gazette, revoke a declaration in force under section 34 in relation to an eligible authority of a State if, and only if, the Minister is satisfied that:
(a) the law of that State no longer makes satisfactory provision in relation to the authority as mentioned in subsection 35(1);
(b) the extent of compliance with a requirement of a law of that State, being a requirement of a kind referred to in subsection 35(1), has been unsatisfactory in so far as the requirement relates to the authority;
(c) no agreement of the kind referred to in subsection 35(2), being an agreement entered into by that State that relates to the authority, is in force;
(d) the extent of compliance by that State with the terms of an agreement of the kind referred to in subsection 35(2), being an agreement entered into by that State, has been unsatisfactory in so far as the agreement relates to the authority; or
(e) the extent of compliance by the chief officer of the authority, or by officers of the authority, with this Act has been unsatisfactory.
38 Effect of revocation
Where a declaration under section 34 in relation to an eligible authority of a State is revoked, this Act:
(a) continues to apply in relation to a warrant that was issued to the authority before the revocation; and
(b) so applies at a particular time as if the authority were an agency at that time.
38A Agencies authorised to apply for Part 5.3 warrants
(1) This section applies to a declaration made under section 34 in relation to an eligible authority of a State.
Authorisation
(2) When the Minister makes the declaration, the Minister must, in the declaration, authorise the eligible authority to apply for Part 5.3 warrants if:
(a) the Premier of the State requests that the eligible authority be so authorised; and
(b) the Minister is satisfied as mentioned in subsection (4) of this section.
(3) The Minister must amend the declaration to authorise the eligible authority to apply for Part 5.3 warrants if:
(a) the declaration does not already so authorise the eligible authority; and
(b) the Premier of the State requests that the eligible authority be so authorised; and
(c) the Minister is satisfied as mentioned in subsection (4).
Criteria to be authorised to apply for a Part 5.3 warrant
(4) For the purposes of paragraph (2)(b) or (3)(c), the Minister must be satisfied that the law of the State makes satisfactory provision:
(a) imposing on the chief officer of the eligible authority requirements corresponding to the requirements that paragraphs 80(f) and (g) and 81(1)(h) and subsection 81(2), so far as that subsection relates to paragraph 81(1)(h), impose on the chief officer of a Commonwealth agency; and
(b) imposing on the chief officer of the eligible authority requirements corresponding to the requirements that section 59B imposes on the chief officer of a Commonwealth agency; and
(c) giving an authority of the State powers corresponding to those that subsections 83(3) and 84(2) and sections 85 and 85A give to the Ombudsman, if the authority of the State receives a notice from the eligible authority because of the requirements mentioned in paragraph (b) of this subsection; and
(d) requiring an authority of the State that has made an inspection of the eligible authority’s records under the powers mentioned in paragraph (c) to report in writing to the responsible Minister about the results of the inspection; and
(e) requiring the responsible Minister to give to the Minister, as soon as practicable, a copy of a report that an authority of the State gives to the responsible Minister under a power or requirement mentioned in paragraph (c) or (d).
Removal of authorisation
(5) The Minister must amend the declaration to remove the authorisation of the eligible authority to apply for Part 5.3 warrants if the Premier of the State requests the Minister to remove the authorisation.
(6) The Minister may amend the declaration to remove the authorisation of the eligible authority to apply for Part 5.3 warrants if the Minister is satisfied that:
(a) the law of the State no longer makes satisfactory provision in relation to the eligible authority as mentioned in subsection (4); or
(b) the extent of compliance with a requirement of a law of that State, being a requirement of a kind mentioned in subsection (4), has been unsatisfactory in so far as the requirement relates to the eligible authority; or
(c) the extent of compliance by the chief officer of the eligible authority, or by officers of the eligible authority, with this Act has been unsatisfactory, so far as this Act relates to Part 5.3 warrants.
(7) If the Minister amends the declaration under subsection (5) or (6), the amendment does not affect the validity of a Part 5.3 warrant issued before the amendment in response to an application by the eligible authority.
Division 3—Applications for warrants
39 Agency may apply for warrant
(1) An agency may apply for a warrant in respect of a telecommunications service or a person to:
(a) for an application made by the National Anti‑Corruption Commission—an eligible Judge; or
(b) otherwise—an eligible Judge or a nominated AAT member.
(2) An application for a warrant shall be made on an agency’s behalf by:
(a) in the case of the Australian Federal Police—a member of the Australian Federal Police; or
(aa) in the case of the National Anti‑Corruption Commission:
(i) the National Anti‑Corruption Commissioner; or
(ii) a National Anti‑Corruption Deputy Commissioner; or
(iii) a staff member of the National Anti‑Corruption Commission who is authorised in writing by the National Anti‑Corruption Commissioner for the purposes of this paragraph; or
(b) in the case of the ACC:
(i) the Chief Executive Officer of the ACC or an examiner; or
(ii) a member of a police force who is a member of the staff of the ACC; or
(c) in the case of the Police Force of a State—an officer of that Police Force; or
(d) in the case of the Crime Commission:
(i) a member of the Crime Commission; or
(ii) a member of the staff of the Crime Commission; or
(e) in the case of the Independent Commission Against Corruption—an officer of that Commission; or
(ea) in the case of the IBAC—an IBAC officer; or
(f) in the case of the Crime and Corruption Commission—a commission officer (within the meaning of the Crime and Corruption Act); or
(g) in the case of the Law Enforcement Conduct Commission:
(i) the Chief Commissioner of the Commission; or
(ii) the Commissioner for Integrity of the Commission; or
(iii) an Assistant Commissioner of the Commission; or
(iv) a member of the staff of the Law Enforcement Conduct Commission; or
(i) in the case of the Corruption and Crime Commission—an officer of the Corruption and Crime Commission; or
(j) in the case of the Independent Commissioner Against Corruption:
(i) the Independent Commissioner Against Corruption; or
(ii) the Deputy Commissioner referred to in section 9 of the Independent Commissioner Against Corruption Act; or
(iii) a member of the staff of the Independent Commissioner Against Corruption.
40 Form of application
(1) Subject to subsection (2), an application for a warrant shall be in writing.
(2) If the person making an application for a warrant on an agency’s behalf:
(a) is the chief officer of the agency or a person in relation to whom an authorisation by the chief officer is in force under subsection (3); and
(b) thinks it necessary, because of urgent circumstances, to make the application by telephone;
the person may make the application by telephone.
(3) The chief officer of an agency may authorise in writing, for the purposes of subsection (2), persons who, or classes of persons who, are entitled under section 39 to make applications on the agency’s behalf.
41 Contents of application
A written application by an agency for a warrant shall set out:
(a) the name of the agency; and
(b) the name of the person making the application on the agency’s behalf.
42 Affidavit to accompany written application
(1) A written application by an agency for a warrant shall be accompanied by an affidavit complying with this section.
(2) The affidavit shall set out the facts and other grounds on which the application is based.
(3) The affidavit shall specify the period for which it is requested that the warrant be in force and shall state why it is considered necessary for the warrant to be in force for that period.
(4) If the application is for a telecommunications service warrant, the affidavit shall set out, in relation to the service, and in relation to each person to whom the application relates, the following information, so far as it can be derived from the agency’s records:
(a) the number of previous applications (if any) for warrants that the agency has made and that related to the service or to that person, as the case may be;
(b) the number of warrants (if any) previously issued on such applications; and
(c) particulars of the use made by the agency of information obtained by interceptions under such warrants.
(4A) If the application is for a named person warrant, the affidavit must set out:
(a) the name or names by which the person is known; and
(b) details (to the extent these are known to the chief officer) sufficient to identify the telecommunications services the person is using, or is likely to use; and
(ba) if the warrant would authorise interception of communications made by means of a telecommunications device or telecommunications devices identified in the warrant—details (to the extent these are known to the chief officer) sufficient to identify the telecommunications device or telecommunications devices that the person is using, or is likely to use; and
(c) the number of previous applications (if any) for warrants that the agency has made and that related to the person or to a service that the person has used; and
(d) the number of warrants (if any) previously issued on such applications; and
(e) particulars of the use made by the agency of information obtained by interceptions under such warrants.
(5) Notwithstanding subsection (1), a written application may be accompanied by 2 or more affidavits that together set out each matter that, but for this subsection, this section would have required an affidavit accompanying the application to set out, specify or state.
43 Information to be given on telephone application
The information given to a Judge or nominated AAT member in connection with a telephone application to the Judge or nominated AAT member:
(a) shall include particulars of the urgent circumstances because of which the person making the application on the agency’s behalf thinks it necessary to make the application by telephone;
(b) shall include each matter that, if the application had been made in writing, section 41, 42 or 48 would have required the application, or an affidavit accompanying it, to set out, specify or state; and
(c) shall be given orally or in writing, as the Judge or nominated AAT member directs.
44 Giving further information to Judge
(1) A Judge or nominated AAT member may require further information to be given in connection with an application to the Judge or nominated AAT member for a warrant.
(2) The further information:
(a) shall be given on oath if the application was made in writing; and
(b) shall be given orally or otherwise, as the Judge or nominated AAT member directs.
44A Application by interception agency of Victoria
Scope
(1) This section applies if an interception agency of Victoria applies, under section 39, to an eligible Judge or nominated AAT member for a warrant in respect of a telecommunications service or a person.
PIM may make submissions
(2) A Victorian PIM may, orally or in writing, make submissions to the Judge or nominated AAT member about the following matters:
(a) in relation to an application for a warrant in respect of a telecommunications service—the matters mentioned in paragraphs 46(2)(a) to (f), 46(5)(a) to (f) or 46(8)(a) to (e), as the case requires;
(b) in relation to an application for a warrant in respect of a person—the matters mentioned in paragraphs 46A(2)(a) to (f), 46A(2B)(a) to (f) or 46A(2D)(a) to (e), as the case requires.
PIM may question certain persons
(3) The Victorian PIM may, for the purpose of making submissions under subsection (2), question:
(a) the person making the application for the warrant on the interception agency’s behalf; or
(b) a person who, under section 44, is required by the Judge or nominated AAT member to give further information to the Judge or nominated AAT member in connection with the application.
However, the Victorian PIM may only do so in the presence of the eligible Judge or nominated AAT member.
45 Application by interception agency of Queensland
Scope
(1) This section applies if an interception agency of Queensland applies, under section 39, to an eligible Judge or nominated AAT member for a warrant in respect of a telecommunications service or a person.
PIM may make submissions
(2) A Queensland PIM may, orally or in writing, make submissions to the Judge or nominated AAT member about the following matters:
(a) in relation to an application for a warrant in respect of a telecommunications service—the matters mentioned in paragraphs 46(2)(a) to (f), 46(5)(a) to (f) or 46(8)(a) to (e), as the case requires;
(b) in relation to an application for a warrant in respect of a person—the matters mentioned in paragraphs 46A(2)(a) to (f), 46A(2B)(a) to (f) or 46A(2D)(a) to (e), as the case requires.
PIM may question certain persons
(3) The Queensland PIM may, for the purpose of making submissions under subsection (2), question:
(a) the person making the application for the warrant on the interception agency’s behalf; or
(b) a person who, under section 44, is required by the Judge or nominated AAT member to give further information to the Judge or nominated AAT member in connection with the application.
However, the Queensland PIM may only do so in the presence of the eligible Judge or nominated AAT member.
(4) A Queensland PIM may delegate to a Queensland deputy PIM the Queensland PIM’s power under subsection (2) or (3), or both. The delegation must be in writing.
(5) In exercising powers under the delegation, the Queensland deputy PIM must comply with any directions of the Queensland PIM.
45A State law not affected
If:
(a) a person (the applicant) applies, or proposes to apply, under section 39, on behalf of an interception agency of Victoria or Queensland for a warrant in respect of a telecommunications service or a person; and
(b) a law of that State authorises or requires the applicant:
(i) to notify the PIM of that State of the application or proposed application; or
(ii) to notify the PIM of that State of any information that relates to the application or proposed application; or
(iii) to give the PIM of that State any document that relates to the application or proposed application;
then nothing in this Act prevents the applicant from making the notification or giving the document to the PIM of that State.
Division 4—Warrants
46 Issue of telecommunications service warrant
Warrant relating to the investigation of one or more serious offences
(1) Where an agency applies to an eligible Judge or nominated AAT member for a warrant in respect of a telecommunications service and the Judge or nominated AAT member is satisfied, on the basis of the information given to the Judge or nominated AAT member under this Part in connection with the application, that:
(a) Division 3 has been complied with in relation to the application; and
(b) in the case of a telephone application—because of urgent circumstances, it was necessary to make the application by telephone; and
(c) there are reasonable grounds for suspecting that a particular person is using, or is likely to use, the service; and
(d) information that would be likely to be obtained by intercepting under a warrant communications made to or from the service would be likely to assist in connection with the investigation by the agency of a serious offence, or serious offences, in which:
(i) the particular person is involved; or
(ii) another person is involved with whom the particular person is likely to communicate using the service; and
(e) having regard to the matters referred to in subsection (2), and to no other matters, the Judge or nominated AAT member should issue a warrant authorising such communications to be intercepted;
the Judge or nominated AAT member may, in his or her discretion, issue such a warrant.
Note: Subparagraph (d)(ii)—subsection (3) restricts the issuing of warrants if subparagraph (d)(ii) applies.
(2) For the purposes of subsection (1), the matters to which the Judge or nominated AAT member shall have regard are:
(a) how much the privacy of any person or persons would be likely to be interfered with by intercepting under a warrant communications made to or from the service referred to in subsection (1); and
(b) the gravity of the conduct constituting the offence or offences being investigated; and
(c) how much the information referred to in paragraph (1)(d) would be likely to assist in connection with the investigation by the agency of the offence or offences; and
(d) to what extent methods of investigating the offence or offences that do not involve so intercepting communications have been used by, or are available to, the agency; and
(e) how much the use of such methods would be likely to assist in connection with the investigation by the agency of the offence or offences; and
(f) how much the use of such methods would be likely to prejudice the investigation by the agency of the offence or offences, whether because of delay or for any other reason; and
(fa) in relation to an application by an interception agency of Victoria—any submissions made by the Victorian PIM under section 44A to the Judge or nominated AAT member; and
(g) in relation to an application by an interception agency of Queensland—any submissions made by the Queensland PIM under section 45 to the Judge or nominated AAT member.
(3) The Judge or nominated AAT member must not issue a warrant under subsection (1) in a case in which subparagraph (1)(d)(ii) applies unless he or she is satisfied that:
(a) the agency has exhausted all other practicable methods of identifying the telecommunications services used, or likely to be used, by the person involved in the offence or offences referred to in paragraph (1)(d); or
(b) interception of communications made to or from a telecommunications service used or likely to be used by that person would not otherwise be possible.
Warrant sought for Part 5.3 supervisory order
(4) If a Part 5.3 warrant agency applies to an eligible Judge or nominated AAT member for a warrant in respect of a telecommunications service and the Judge or nominated AAT member is satisfied, on the basis of the information given to the Judge or nominated AAT member under this Part in connection with the application, that:
(a) Division 3 has been complied with in relation to the application; and
(b) in the case of a telephone application—because of urgent circumstances, it was necessary to make the application by telephone; and
(c) there are reasonable grounds for suspecting that a particular person is using, or is likely to use, the service; and
(d) either:
(i) a Part 5.3 supervisory order is in force in relation to the particular person; or
(ii) a Part 5.3 supervisory order is in force in relation to another person, and the particular person is likely to communicate with the other person using the service; and
(e) information that would be likely to be obtained by intercepting under a warrant communications made to or from the service would be likely to substantially assist in connection with:
(i) achieving a Part 5.3 object; or
(ii) determining whether the Part 5.3 supervisory order, or any succeeding Part 5.3 supervisory order, has been, or is being, complied with; and
(f) having regard to the matters referred to in subsection (5), and to no other matters, the Judge or nominated AAT member should issue a warrant authorising such communications to be intercepted;
the Judge or nominated AAT member may, in his or her discretion, issue such a warrant.
Note 1: Subsection (6) restricts the issuing of warrants if subparagraph (d)(ii) applies.
Note 2: For Part 5.3 supervisory orders that have been made but not come into force, see section 6T.
(5) For the purposes of subsection (4), the matters to which the Judge or nominated AAT member must have regard are:
(a) how much the privacy of any person or persons would be likely to be interfered with by intercepting under a warrant communications made to or from the service referred to in subsection (4); and
(b) how much the information referred to in paragraph (4)(e) would be likely to assist in connection with:
(i) achieving a Part 5.3 object; or
(ii) determining whether the Part 5.3 supervisory order, or any succeeding Part 5.3 supervisory order, has been, or is being, complied with; and
(c) to what extent methods for:
(i) achieving a Part 5.3 object; or
(ii) determining whether the Part 5.3 supervisory order, or any succeeding Part 5.3 supervisory order, has been, or is being, complied with;
that do not involve so intercepting communications have been used by, or are available to, the agency; and
(d) how much the use of such methods would be likely to assist in connection with:
(i) achieving a Part 5.3 object; or
(ii) determining whether the Part 5.3 supervisory order, or any succeeding Part 5.3 supervisory order, has been, or is being, complied with; and
(e) how much the use of such methods would be likely to prejudice:
(i) achieving a Part 5.3 object; or
(ii) determining whether the Part 5.3 supervisory order, or any succeeding Part 5.3 supervisory order, has been, or is being, complied with;
whether because of delay or for any other reason; and
(f) whether intercepting under a warrant communications made to or from the service referred to in subsection (4) would be the method that is likely to have the least interference with any person’s privacy; and
(g) in relation to a Part 5.3 supervisory order that is a control order—the possibility that the person in relation to whom the control order is in force:
(i) has engaged, is engaging, or will engage, in a terrorist act; or
(ii) has provided, is providing, or will provide, support for a terrorist act; or
(iii) has facilitated, is facilitating, or will facilitate, a terrorist act; or
(iv) has provided, is providing, or will provide, support for the engagement in a hostile activity in a foreign country; or
(v) has facilitated, is facilitating, or will facilitate, the engagement in a hostile activity in a foreign country; and
(ga) in relation to a Part 5.3 supervisory order that is an extended supervision order or interim supervision order—the possibility that the person in relation to whom the order is in force has committed, is committing, or will commit a serious Part 5.3 offence; and
(gb) in relation to any Part 5.3 supervisory order—the possibility that the person in relation to whom the order is in force:
(i) has contravened, is contravening or will contravene the Part 5.3 supervisory order; or
(ii) will contravene a succeeding Part 5.3 supervisory order; and
(h) in relation to an application by an interception agency of Victoria—any submissions made by the Victorian PIM under section 44A to the Judge or nominated AAT member; and
(i) in relation to an application by an interception agency of Queensland—any submissions made by the Queensland PIM under section 45 to the Judge or nominated AAT member.
(6) The Judge or nominated AAT member must not issue a warrant in a case in which subparagraph (4)(d)(ii) applies unless he or she is satisfied that:
(a) the agency has exhausted all other practicable methods of identifying the telecommunications services used, or likely to be used, by the person to whom the Part 5.3 supervisory order referred to in subparagraph (4)(d)(ii) relates; or
(b) interception of communications made to or from a telecommunications service used or likely to be used by that person would not otherwise be possible.
Warrant sought for post‑sentence order application
(7) If a Part 5.3 warrant agency applies to an eligible Judge or nominated AAT member for a warrant in respect of a telecommunications service and the Judge or nominated AAT member is satisfied, on the basis of the information given to the Judge or nominated AAT member under this Part in connection with the application, that:
(a) Division 3 has been complied with in relation to the application; and
(b) in the case of a telephone application—because of urgent circumstances, it was necessary to make the application by telephone; and
(c) there are reasonable grounds for suspecting that a particular person is using, or is likely to use, the service; and
(d) the person is a terrorist offender in relation to whom an application for a post‑sentence order could be made; and
(e) the person is detained in custody in a prison; and
(f) there are reasonable grounds to suspect that there is an appreciable risk of the person committing a serious Part 5.3 offence; and
(g) consideration is being given, will be given, or is likely to be given, by the AFP Minister (or a person on behalf of the AFP Minister), as to whether to apply for a post‑sentence order in relation to the person; and
(h) information that would be likely to be obtained by intercepting under a warrant communications made to or from the service would be likely to assist in determining whether to apply for the post‑sentence order; and
(i) having regard to the matters referred to in subsection (8), and to no other matters, the Judge or nominated AAT member should issue a warrant authorising such communications to be intercepted;
the Judge or nominated AAT member may, in the Judge’s or member’s discretion, issue such a warrant.
(8) For the purposes of subsection (7), the matters to which the Judge or nominated AAT member must have regard are:
(a) how much the privacy of any person or persons would be likely to be interfered with by intercepting under a warrant communications made to or from the service referred to in subsection (7); and
(b) how much the information referred to in paragraph (7)(h) would be likely to assist in determining whether to apply for the post‑sentence order; and
(c) to what extent methods of determining whether to apply for the post‑sentence order that do not involve so intercepting communications have been used by, or are available to, the AFP Minister (or a legal representative of the AFP Minister); and
(d) how much the use of such methods would be likely to assist in determining whether to apply for the post‑sentence order; and
(e) how much the use of such methods would be likely to prejudice determining whether to apply for the post‑sentence order, whether because of delay or for any other reason; and
(f) in relation to an application by an interception agency of Victoria—any submissions made by the Victorian PIM under section 44A to the Judge or nominated AAT member; and
(g) in relation to an application by an interception agency of Queensland—any submissions made by the Queensland PIM under section 45 to the Judge or nominated AAT member.
46A Issue of named person warrant
Warrant relating to the investigation of one or more serious offences
(1) Where an agency applies to an eligible Judge or nominated AAT member for a warrant in respect of a person and the Judge or nominated AAT member is satisfied, on the basis of the information given to the Judge or nominated AAT member under this Part in connection with the application, that:
(a) Division 3 has been complied with in relation to the application; and
(b) in the case of a telephone application—because of urgent circumstances, it was necessary to make the application by telephone; and
(c) there are reasonable grounds for suspecting that a particular person is using, or is likely to use, more than one telecommunications service; and
(d) information that would be likely to be obtained by intercepting under a warrant:
(i) communications made to or from any telecommunications service that the person is using, or is likely to use; or
(ii) communications made by means of a particular telecommunications device or particular telecommunications devices that the person is using, or is likely to use;
would be likely to assist in connection with the investigation by the agency of a serious offence, or serious offences, in which the person is involved; and
(e) having regard to the matters referred to in subsection (2), and to no other matters, the Judge or nominated AAT member should issue a warrant authorising such communications to be intercepted;
the Judge or nominated AAT member may, in his or her discretion, issue such a warrant.
Note: Subsection (3) restricts the issuing of a warrant authorising interception of communications made by means of a telecommunications device or telecommunications devices identified in the warrant.
(2) For the purposes of subsection (1), the matters to which the Judge or nominated AAT member must have regard are:
(a) how much the privacy of any person or persons would be likely to be interfered with by intercepting under a warrant:
(i) communications made to or from any telecommunications service used, or likely to be used, by the person in respect of whom the warrant is sought; or
(ii) communications made by means of a particular telecommunications device or particular telecommunications devices used, or likely to be used, by the person in respect of whom the warrant is sought;
as the case requires; and
(b) the gravity of the conduct constituting the offence or offences being investigated; and
(c) how much the information referred to in paragraph (1)(d) would be likely to assist in connection with the investigation by the agency of the offence or offences; and
(d) to what extent methods (including the use of a warrant issued under section 46) of investigating the offence or offences that do not involve the use of a warrant issued under this section in relation to the person have been used by, or are available to, the agency; and
(e) how much the use of such methods would be likely to assist in connection with the investigation by the agency of the offence or offences; and
(f) how much the use of such methods would be likely to prejudice the investigation by the agency of the offence or offences, whether because of delay or for any other reason; and
(fa) in relation to an application by an interception agency of Victoria—any submissions made by the Victorian PIM under section 44A to the Judge or nominated AAT member; and
(g) in relation to an application by an interception agency of Queensland—any submissions made by the Queensland PIM under section 45 to the Judge or nominated AAT member.
Warrant for Part 5.3 supervisory order
(2A) If a Part 5.3 warrant agency applies to an eligible Judge or nominated AAT member for a warrant in respect of a person and the Judge or nominated AAT member is satisfied, on the basis of the information given to the Judge or nominated AAT member under this Part in connection with the application, that:
(a) Division 3 has been complied with in relation to the application; and
(b) in the case of a telephone application—because of urgent circumstances, it was necessary to make the application by telephone; and
(c) there are reasonable grounds for suspecting that a particular person is using, or is likely to use, more than one telecommunications service; and
(d) a Part 5.3 supervisory order is in force in relation to the person; and
(e) information that would be likely to be obtained by intercepting under a warrant:
(i) communications made to or from any telecommunications service that the person is using, or is likely to use; or
(ii) communications made by means of a particular telecommunications device or particular telecommunications devices that the person is using, or is likely to use;
would be likely to substantially assist in connection with:
(iii) achieving a Part 5.3 object; or
(iv) determining whether the Part 5.3 supervisory order, or any succeeding Part 5.3 supervisory order, has been, or is being, complied with; and
(f) having regard to the matters referred to in subsection (2B), and to no other matters, the Judge or nominated AAT member should issue a warrant authorising such communications to be intercepted;
the Judge or nominated AAT member may, in his or her discretion, issue such a warrant.
Note 1: Subsection (3) restricts the issuing of a warrant authorising interception of communications made by means of a telecommunications device or telecommunications devices identified in the warrant.
Note 2: For Part 5.3 supervisory orders that have been made but not come into force, see section 6T.
(2B) For the purposes of subsection (2A), the matters to which the Judge or nominated AAT member must have regard are:
(a) how much the privacy of any person or persons would be likely to be interfered with by intercepting under a warrant:
(i) communications made to or from any telecommunications service used, or likely to be used, by the person in respect of whom the warrant is sought; or
(ii) communications made by means of a particular telecommunications device or particular telecommunications devices used, or likely to be used, by the person in respect of whom the warrant is sought;
as the case requires; and
(b) how much the information referred to in paragraph (2A)(e) would be likely to assist in connection with:
(i) achieving a Part 5.3 object; or
(ii) determining whether the Part 5.3 supervisory order, or any succeeding Part 5.3 supervisory order, has been, or is being, complied with; and
(c) to what extent methods (including the use of a warrant issued under section 46) for:
(i) achieving a Part 5.3 object; or
(ii) determining whether the Part 5.3 supervisory order, or any succeeding Part 5.3 supervisory order, has been, or is being, complied with;
that do not involve the use of a warrant issued under this section in relation to the person have been used by, or are available to, the agency; and
(d) how much the use of such methods would be likely to assist in connection with:
(i) achieving a Part 5.3 object; or
(ii) determining whether the Part 5.3 supervisory order, or any succeeding Part 5.3 supervisory order, has been, or is being, complied with; and
(e) how much the use of such methods would be likely to prejudice:
(i) achieving a Part 5.3 object; or
(ii) determining whether the Part 5.3 supervisory order, or any succeeding Part 5.3 supervisory order, has been, or is being, complied with;
whether because of delay or for any other reason; and
(f) whether intercepting under a warrant communications referred to in paragraph (a) of this subsection would be the method that is likely to have the least interference with any person’s privacy; and
(g) in relation to a Part 5.3 supervisory order that is a control order—the possibility that the person in relation to whom the order is in force:
(i) has engaged, is engaging, or will engage, in a terrorist act; or
(ii) has provided, is providing, or will provide, support for a terrorist act; or
(iii) has facilitated, is facilitating, or will facilitate, a terrorist act; or
(iv) has provided, is providing, or will provide, support for the engagement in a hostile activity in a foreign country; or
(v) has facilitated, is facilitating, or will facilitate, the engagement in a hostile activity in a foreign country; and
(ga) in relation to a Part 5.3 supervisory order that is an extended supervision order or interim supervision order—the possibility that the person in relation to whom the order is in force has committed, is committing, or will commit a serious Part 5.3 offence; and
(gb) in relation to any Part 5.3 supervisory order—the possibility that the person in relation to whom the order is in force:
(i) has contravened, is contravening, or will contravene, the Part 5.3 supervisory order; or
(ii) will contravene a succeeding Part 5.3 supervisory order; and
(h) in relation to an application by an interception agency of Victoria—any submissions made by the Victorian PIM under section 44A to the Judge or nominated AAT member; and
(i) in relation to an application by an interception agency of Queensland—any submissions made by the Queensland PIM under section 45 to the Judge or nominated AAT member.
Warrant sought for post‑sentence order application
(2C) If a Part 5.3 warrant agency applies to an eligible Judge or nominated AAT member for a warrant in respect of a person and the Judge or nominated AAT member is satisfied, on the basis of the information given to the Judge or nominated AAT member under this Part in connection with the application, that:
(a) Division 3 has been complied with in relation to the application; and
(b) in the case of a telephone application—because of urgent circumstances, it was necessary to make the application by telephone; and
(c) there are reasonable grounds for suspecting that a particular person is using, or is likely to use, more than one telecommunications service; and
(d) the person is a terrorist offender in relation to whom an application for a post‑sentence order could be made; and
(e) the person is detained in custody in a prison; and
(f) there are reasonable grounds to suspect that there is an appreciable risk of the person committing a serious Part 5.3 offence; and
(g) consideration is being given, will be given, or is likely to be given, by the AFP Minister (or a person on behalf of the AFP Minister), as to whether to apply for a post‑sentence order in relation to the person; and
(h) information that would be likely to be obtained by intercepting under a warrant:
(i) communications made to or from any telecommunications service that the person is using, or is likely to use; or
(ii) communications made by means of a particular telecommunications device or particular telecommunications devices that the person is using, or is likely to use;
would be likely to assist in determining whether to apply for the post‑sentence order; and
(i) having regard to the matters referred to in subsection (2D), and to no other matters, the Judge or nominated AAT member should issue a warrant authorising such communications to be intercepted;
the Judge or nominated AAT member may, in the Judge’s or member’s discretion, issue such a warrant.
(2D) For the purposes of subsection (2C), the matters to which the Judge or nominated AAT member must have regard are:
(a) how much the privacy of any person or persons would be likely to be interfered with by intercepting under a warrant:
(i) communications made to or from any telecommunications service used, or likely to be used, by the person in respect of whom the warrant is sought; or
(ii) communications made by means of a particular telecommunications device or particular telecommunications devices used, or likely to be used, by the person in respect of whom the warrant is sought; and
(b) how much the information referred to in paragraph (2C)(h) would be likely to assist in connection with determining whether to apply for the post‑sentence order; and
(c) to what extent methods (including the use of a warrant issued under section 46) for determining whether to apply for a post‑sentence order that do not involve so intercepting communications have been used by, or are available to, the AFP Minister (or a legal representative of the AFP Minister); and
(d) how much the use of such methods would be likely to assist in determining whether to apply for the post‑sentence order; and
(e) how much the use of such methods would be likely to prejudice determining whether to apply for the post‑sentence order, whether because of delay or for any other reasons; and
(f) in relation to an application by an interception agency of Victoria—any submissions made by the Victorian PIM under section 44A to the Judge or nominated AAT member; and
(g) in relation to an application by an interception agency of Queensland—any submissions made by the Queensland PIM under section 45 to the Judge or nominated AAT member.
Restriction on issue of warrant—interception of communications made by means of one or more telecommunications devices
(3) The Judge or nominated AAT member must not issue a warrant that authorises interception of communications made by means of a telecommunications device or telecommunications devices identified in the warrant unless he or she is satisfied that:
(a) there are no other practicable methods available to the agency at the time of making the application to identify the telecommunications services used, or likely to be used, by the person in respect of whom the warrant would be issued; or
(b) interception of communications made to or from a telecommunications service used, or likely to be used, by that person would not otherwise be practicable.
47 Limit on authority conferred by warrant
A warrant issued under section 46 or 46A does not authorise the interception of communications passing over a telecommunications system that a carrier operates unless:
(a) notification of the issue of the warrant has been received by an authorised representative of the carrier under subsection 60(1); and
(b) the interception takes place as a result of action taken by an employee of the carrier.
48 Issue of warrant for entry on premises
(1) If an agency could apply for a warrant under section 46 (authorising interceptions of communications to or from a service), it may instead apply for a warrant under this section that also authorises entry on premises. The agency does so by including in the application that would otherwise have been made under section 46 a request that the warrant also authorise entry on specified premises.
Note: Only a Part 5.3 warrant agency may apply for a warrant under section 46 in the circumstances mentioned in subsection 46(4) or (7).
(2) Where a written application for a warrant includes a request that the warrant authorise entry on specified premises, an affidavit accompanying the application shall:
(a) state why it is considered necessary for the warrant to authorise entry on those premises;
(b) set out the number of previous applications (if any) for warrants that the agency has made and that requested authorisation of entry on those premises; and
(c) set out the number of warrants (if any) previously issued on such application.
(3) Where:
(a) an agency applies under this section to an eligible Judge or nominated AAT member for a warrant in respect of a telecommunications service; and
(b) the Judge or nominated AAT member is satisfied that subsection (2) has been complied with in relation to the application; and
(c) section 46 would empower the Judge or nominated AAT member to issue a warrant if the application had been made under either of those sections; and
(ca) Division 3 has been complied with in relation to the application; and
(d) the Judge or nominated AAT member is satisfied, on the basis of the information given to the Judge or nominated AAT member under this Part in connection with the application, that:
(i) for technical reasons connected with the nature or operation of the service or of a telecommunications system of which the service forms a part; or
(ii) where, if the warrant were issued under section 46, communications to or from the telecommunications service would be intercepted while passing over a telecommunications system operated by a carrier—execution of the warrant as a result of action taken by employees of that carrier might jeopardise security of the investigation by the agency of a serious offence in which a person to whom the application relates is involved or, in the case of a warrant issued in the circumstances mentioned in subsection 46(4), might jeopardise the achievement of an objective for which the warrant was issued;
it would be impracticable or inappropriate to intercept communications under a warrant in respect of the service otherwise than by the use of equipment or a line installed on those premises;
subsections (4) and (5) apply.
(4) The Judge or nominated AAT member may issue a warrant under this section authorising:
(a) entry on those premises in order to install, maintain, use or recover equipment or a line used in the interception of communications being made to or from the service; and
(b) interceptions of such communications by the use of that equipment or line.
(5) If the Judge or nominated AAT member issues such a warrant:
(a) the warrant shall state whether entry is authorised to be made at any time of the day or night or only during specified hours; and
(b) the warrant may provide that entry may be made without permission first being sought or demand first being made, and authorise measures that the Judge or nominated AAT member is satisfied are necessary and reasonable for that purpose.
49 Form and content of warrant
(1) A warrant shall be in accordance with the prescribed form and shall be signed by the Judge or nominated AAT member who issues it.
(2) A warrant may specify conditions or restrictions relating to interceptions under the warrant.
(2A) Without limiting subsection (2), a named person warrant may state that the warrant does not authorise the interception of communications made to or from a specified telecommunications service.
Period of warrant
(3) A warrant shall specify, as the period for which it is to be in force, a period of:
(a) if subparagraph 46(1)(d)(ii) or 46(4)(d)(ii) applies—up to 45 days; or
(b) otherwise—up to 90 days.
(4) A Judge or nominated AAT member shall not vary a warrant by extending the period for which it is to be in force.
(5) Neither of subsections (3) and (4) prevents the issue of a further warrant in respect of a service, or a person, in respect of which a warrant has, or warrants have, previously been issued.
(6) In subsection (5), warrant means a warrant issued under this Act.
(6A) To avoid doubt, a warrant issued on the basis that a Part 5.3 supervisory order is in force remains in force for the period mentioned in subsection (3) even if the order ceases to be in force, provided that the order is replaced by a succeeding Part 5.3 supervisory order.
Note 1: If there is no succeeding Part 5.3 supervisory order, the warrant must be revoked (see section 57).
Note 2: A control order is not a succeeding Part 5.3 supervisory order in relation to an extended supervision order, and vice versa (see section 6U).
Particulars of serious offences
(7) A warrant issued under subsection 46(1) or 46A(1), or issued under section 48 in the circumstances mentioned in subsection 46(1), shall set out short particulars of each serious offence in relation to which the Judge or nominated AAT member issuing the warrant was satisfied, on the application for the warrant, as mentioned in:
(a) in the case of a warrant under section 48—paragraph 46(1)(d); or
(b) otherwise—paragraph 46(1)(d) or 46A(1)(d), as the case requires.
Content of warrants issued for Part 5.3 supervisory orders
(8) A warrant issued for a Part 5.3 supervisory order that is in force must:
(a) state that the warrant is issued on the basis of a Part 5.3 supervisory order made in relation to a person; and
(b) specify the name of the person; and
(c) specify the date the Part 5.3 supervisory order was made; and
(d) state whether the Part 5.3 supervisory order is:
(i) an interim control order; or
(ii) a confirmed control order; or
(iii) an interim supervision order; or
(iv) an extended supervision order.
Warrants issued for post‑sentence order applications
(9) A warrant issued to determine whether to make an application for a post‑sentence order in relation to a person must:
(a) state that the warrant is issued on that basis; and
(b) specify the name of the person.
50 Issue of warrant on telephone application
(1) As soon as practicable after completing and signing a warrant issued on a telephone application, a Judge or nominated AAT member shall:
(b) inform the person who made the application on the agency’s behalf of:
(i) the terms of the warrant; and
(ii) the day on which, and the time at which, the warrant was signed; and
(c) give the warrant to that person.
(2) A Judge or nominated AAT member who issues a warrant on a telephone application shall keep a copy of the warrant.
51 Action by agency after warrant issued on telephone application
(1) A person (in this section called the applicant) who makes a telephone application on an agency’s behalf shall comply with this section within one day after the day on which a warrant is issued on the application.
(2) The applicant shall cause each person who gave information to the Judge or nominated AAT member in connection with the application to swear an affidavit setting out the information so given by the person.
(3) The applicant shall give to the Judge or nominated AAT member:
(a) the affidavit or affidavits; and
(b) unless the applicant is the chief officer of the agency—a copy of an authorisation by the chief officer under subsection 40(3) that was in force in relation to the applicant when the application was made.
52 Judge or nominated AAT member may revoke warrant where section 51 contravened
(1) Where a Judge or nominated AAT member who issued a warrant on a telephone application is satisfied that section 51 has not been complied with in relation to the warrant, he or she may, by writing signed by him or her, revoke the warrant and shall, if he or she does so:
(a) immediately inform:
(i) the person who made the application on the agency’s behalf; or
(ii) the chief officer of the agency;
of the revocation; and
(b) give the instrument of revocation to that person, or to the chief officer, as soon as practicable.
(2) Where a warrant issued to an agency is revoked under subsection (1), the chief officer of the agency must, as soon as practicable, give a copy of the instrument of revocation to the Secretary of the Department.
(3) If:
(a) a warrant has been issued to an agency; and
(b) another agency or the Organisation is exercising authority under that warrant (see section 55); and
(c) the warrant is revoked under subsection (1);
the chief officer of the agency to which the warrant was issued must:
(d) immediately inform the chief officer of the other agency or the Director‑General of Security (as the case requires) of the revocation; and
(e) give a copy of the instrument of revocation to the person referred to in paragraph (d) as soon as practicable.
54 Entry into force of warrants
A warrant comes into force when it is issued.
55 Exercise of authority conferred by warrant
(1) The authority conferred by a Part 2‑5 warrant may only be exercised by a person in relation to whom an approval under subsection (3) is in force in relation to the warrant.
(3) The chief officer of an agency, or an officer of an agency in relation to whom an appointment under subsection (4) is in force, may approve any of the following persons to exercise the authority conferred by warrants (or classes of warrants) issued to the agency:
(a) officers (or classes of officers) of the agency or another agency;
(b) staff members (or classes of staff members) of the agency or another agency;
(c) ASIO employees (or classes of ASIO employees);
(d) persons assisting the Organisation in the performance of its functions.
(4) The chief officer of an agency may appoint in writing an officer of the agency to be an approving officer for the purposes of subsection (3).
(5) In spite of subsection (1), a designated officer, or an employee of a carrier, may provide technical assistance to a person who is exercising the authority conferred by a warrant.
(6) A reference in subsection (5) to the provision of technical assistance includes a reference to:
(a) the doing of any act involved in the interception of a communication under a warrant, to the extent that the act is incidental to the doing of an act referred to in paragraph (b); and
(b) the doing of any act in connection with:
(i) the installation of equipment for the purposes of intercepting a communication in accordance with a warrant; or
(ii) the maintenance, testing or use of such equipment; or
(iii) the removal of such equipment.
(7) The chief officer of an agency or a person who is an approving officer for an agency under subsection (4) may, in writing, declare persons to be designated officers for the purposes of subsection (5).
(8) To avoid doubt, the Organisation exercises authority under a warrant even if a person assisting the Organisation in the performance of its functions, who is not an ASIO employee, is approved to exercise that authority under paragraph (3)(d).
57 Revocation of warrant by chief officer
(1) The chief officer of an agency:
(a) may, at any time, by signed writing, revoke a warrant issued to the agency; and
(b) must do so, if he or she is satisfied that the grounds on which the warrant was issued to the agency have ceased to exist.
(2) If another agency or the Organisation is exercising authority under the warrant, then before revoking the warrant, the chief officer must inform the chief officer of the other agency or the Director‑General of Security (as the case requires) of the proposed revocation.
(3) After revoking the warrant, the chief officer must:
(a) if subsection (2) applies—immediately inform the chief officer of the other agency or the Director‑General of Security (as the case requires) of the revocation; and
(b) in any case—give a copy of the instrument of revocation to the Secretary of the Department as soon as practicable.
(4) The chief officer of an agency may delegate his or her power under paragraph (1)(a) to a certifying officer of the agency.
(5) This section does not apply in relation to a warrant that has ceased to be in force.
(6) For the purposes of the application of subsection (1) to a Part 5.3 supervisory order warrant issued on the ground that a Part 5.3 supervisory order was in force, that ground is taken to have ceased to exist if, and only if, neither that Part 5.3 supervisory order, nor any succeeding Part 5.3 supervisory order, is in force.
58 Discontinuance of interceptions under certain warrants
(1) The chief officer of an agency must, on the revocation or proposed revocation of a warrant issued to the agency, immediately take such steps as are necessary to ensure that interceptions of communications under the warrant are discontinued.
(2) If the chief officer of an agency or the Director‑General of Security is informed under section 57 of the revocation or proposed revocation of a warrant, he or she must immediately take such steps as are necessary to ensure that interceptions of communications under the warrant by the agency or the Organisation (as the case requires) are discontinued.
59 When revocation of certain warrants takes effect
A warrant revoked under subsection 52(1) or 57(1) does not cease to be in force until the instrument of revocation is received by or on behalf of the Secretary of the Department or the warrant expires, whichever happens sooner.
59A Notification to Secretary of the Department
(1) Where a Part 2‑5 warrant is issued to an agency, the chief officer of the agency must cause a copy of the warrant to be given to the Secretary of the Department as soon as practicable.
(2) Where:
(a) it is proposed, under a warrant issued under section 46A, to intercept communications made to or from a telecommunications service; and
(b) the warrant is not a warrant that authorises interception of communications made by means of a telecommunications device or telecommunications devices identified in the warrant; and
(c) the service was not identified in the warrant;
the chief officer must cause the Secretary of the Department to be given, as soon as practicable, a description in writing of the service sufficient to identify it.
59B Notification to Ombudsman by Commonwealth agencies in relation to Part 5.3 warrants
(1) Within 6 months after a Part 5.3 warrant is issued in response to an application by a Commonwealth agency, the chief officer of the agency must:
(a) notify the Ombudsman that the warrant has been issued; and
(b) give to the Ombudsman a copy of the warrant.
(2) As soon as practicable after an officer of a Commonwealth agency contravenes any of the following conditions, restrictions or provisions, the chief officer of the agency must notify the Ombudsman of the contravention:
(a) a condition or restriction specified in the warrant under subsection 49(2);
(b) the following provisions, to the extent that they apply to the warrant:
(i) paragraph 57(1)(b);
(ii) subsection 63(1);
(iii) subsection 63(2);
(iv) section 79;
(c) section 79AA;
(d) subsection 103B(4).
(3) A failure to comply with subsection (1) or (2) does not affect the validity of the warrant.
60 Notification to authorised representative of carrier of issue or revocation of certain warrants
(1) Where:
(a) a warrant (other than a warrant issued under section 48) is issued to an agency; and
(b) it is proposed, under the warrant, to intercept communications to or from a telecommunications service while they are passing over a telecommunications system operated by a carrier;
a certifying officer of the agency shall cause;
(c) an authorised representative of that carrier to be informed immediately of the issue of the warrant; and
(d) a copy of the warrant, certified in writing by a certifying officer of the agency to be a true copy of the warrant, to be given as soon as practicable to that authorised representative.
(3) Where:
(a) an authorised representative of a carrier has been informed, under subsection (1), of the issue of a warrant; and
(b) the warrant is revoked;
a certifying officer of the agency to which the warrant was issued shall cause:
(c) that authorised representative to be informed immediately of the revocation; and
(d) a copy of the instrument of revocation, certified in writing by a certifying officer of the agency to be a true copy of the instrument, to be given as soon as practicable to that authorised representative.
(4) Where:
(a) an authorised representative of a carrier has been