73AInterception capability

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