1. Background
The Telecommunications Interception and Intelligence Services Legislation Amendment Bill 2010 ("Bill") was passed last week by both Houses of Parliament but has not yet received Royal Assent. It amends the Telecommunications (Interception and Access) Act 1979 ("Interception Act") in the following areas.
2. Proposed changes to a telecommunications network
Carriage service providers will now need to advise ACMA in writing if they intend to implement any changes to equipment which are likely to have a material adverse effect on its capacity to comply with its interception or stored communications obligations under the Interception Act, or section 313 of the Telecommunications Act 1997 ("Act"). The notification needs to be before the implementation takes place, rather than after (which is currently the case). ACMA may also liaise with law enforcement agencies to assess the impact of the proposed changes. The carriage service provider must not make the changes for 30 days after it notifies ACMA of the proposed changes. This period may be extended if ACMA (or a law enforcement agency) has concerns about the impact of the proposed changes on that carriage service provider's interception capabilities.
3. Missing persons and victims of serious crimes
A member of the Australian Federal Police or a State or Territory police force can now authorise disclosure of information or documents that could help locate missing persons. The authorisation only applies to information or documents created before the authorisation, and carriage service providers will need to include reference to such authorisations in their evidentiary certificates. Stored communications in relation to victims of serious crime (defined in the Interception Act as "serious contraventions") can now also be the subject of a stored communications warrant.
4. Notification of warrants to Managing Directors
Notification of warrants previously needed to be made to the "Managing Director", or CEO, of a carriage service provider. Due to various practical issues that have arisen, law enforcement agencies now need to notify the "authorised representative" of the carriage service provider. An authorised representative is the CEO or Secretary of the carriage service provider, or an employee that has been authorised in writing by the CEO. Carriage service providers will need to make sure they comply with any procedural requirements, such as clearly documenting any authorisations. This may also include, if appropriate, advising the law enforcement agencies of the authorisation to enable those law enforcement agencies to comply with their notification obligations under the Interception Act.
5. Exercise of warrant powers;
The Bill also introduces significant changes in relation to the ability of the Australian Security Intelligence Organisation to provide technical assistance to law enforcement agencies, as well as enable greater cooperation, assistance and information sharing among Australia's national security community. While these changes have been the subject of intense debate, there will be little impact on carriage service providers in this regard.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
