This instrument is the Telecommunications (Interception and Access) Regulations 2017.
3 Authority
This instrument is made under the Telecommunications (Interception and Access) Act 1979.
5 Definitions
In this instrument:
Act means the Telecommunications (Interception and Access) Act 1979.
Part 2—General matters
6 Criminal organisation—prescribed provision
For the purposes of paragraph (b) of the definition of criminal organisation in subsection 5(1) of the Act, section 7 of the Serious Crime Control Act 2009 (NT) is prescribed.
Note: Section 7 of the Serious Crime Control Act 2009 (NT) describes an organisation declared under section 15 of that Act.
7 Proceeding for confiscation or forfeiture or for pecuniary penalty—prescribed Acts
For the purposes of paragraph 6K(c) of the Act, each of the following is prescribed:
(a) the Proceeds of Crime Act 2002;
(b) the Confiscation of Proceeds of Crime Act 1989 (NSW);
(c) the Criminal Assets Recovery Act 1990 (NSW);
(d) the Confiscation Act 1997 (Vic);
(e) the Criminal Proceeds Confiscation Act 2002 (Qld);
(f) the Criminal Property Confiscation Act 2000 (WA);
(g) the Criminal Assets Confiscation Act 2005 (SA);
(h) the Crime (Confiscation of Profits) Act 1993 (Tas);
(i) the Confiscation of Criminal Assets Act 2003 (ACT);
(j) the Criminal Property Forfeiture Act 2002 (NT).
8 Warrants authorising agencies to intercept telecommunications—prescribed forms
For the purposes of subsection 49(1) of the Act, the following forms are prescribed:
(a) for a warrant issued under subsection 46(1) of the Act to which subparagraph 46(1)(d)(i) of the Act applies—Form 1 in Schedule 1;
(b) for a warrant issued under subsection 46(1) of the Act to which subparagraph 46(1)(d)(ii) of the Act applies—Form 2 in Schedule 1;
(ba) for a warrant issued under subsection 46(4) of the Act to which subparagraph 46(4)(d)(i) of the Act applies—Form 2A in Schedule 1;
(bb) for a warrant issued under subsection 46(4) of the Act to which subparagraph 46(4)(d)(ii) of the Act applies—Form 2B in Schedule 1;
(bc) for a warrant issued under subsection 46(7) of the Act—Form 2C in Schedule 1;
(bd) for a warrant issued under subsection 46(9) of the Act to which subparagraph 46(9)(d)(i) of the Act applies—Form 2D in Schedule 1;
(be) for a warrant issued under subsection 46(9) of the Act to which subparagraph 46(9)(d)(ii) of the Act applies—Form 2E in Schedule 1;
(bf) for a warrant issued under subsection 46(12) of the Act—Form 2F in Schedule 1;
(c) for a warrant issued under subsection 46A(1) of the Act to which subparagraph 46A(1)(d)(i) of the Act applies—Form 3 in Schedule 1;
(d) for a warrant issued under subsection 46A(1) of the Act to which subparagraph 46A(1)(d)(ii) of the Act applies—Form 4 in Schedule 1;
(e) for a warrant issued under subsection 46A(2A) of the Act to which subparagraph 46A(2A)(e)(i) of the Act applies—Form 4A in Schedule 1;
(f) for a warrant issued under subsection 46A(2A) of the Act to which subparagraph 46A(2A)(e)(ii) of the Act applies—Form 4B in Schedule 1;
(fa) for a warrant issued under subsection 46A(2C) of the Act to which subparagraph 46A(2C)(h)(i) of the Act applies—Form 4C in Schedule 1;
(fb) for a warrant issued under subsection 46A(2C) of the Act to which subparagraph 46A(2C)(h)(ii) of the Act applies—Form 4D in Schedule 1;
(fc) for a warrant issued under subsection 46A(2E) of the Act to which subparagraph 46A(2E)(e)(i) of the Act applies—Form 4E in Schedule 1;
(fd) for a warrant issued under subsection 46A(2E) of the Act to which subparagraph 46A(2E)(e)(ii) of the Act applies—Form 4F in Schedule 1;
(fe) for a warrant issued under subsection 46A(2G) of the Act to which subparagraph 46A(2G)(g)(i) of the Act applies—Form 4G in Schedule 1;
(ff) for a warrant issued under subsection 46A(2G) of the Act to which subparagraph 46A(2G)(g)(ii) of the Act applies—Form 4H in Schedule 1;
(g) for a warrant issued under section 48 of the Act in circumstances mentioned in subsection 46(1) of the Act—Form 5 in Schedule 1;
(h) for a control order warrant issued under section 48 of the Act in circumstances mentioned in subsection 46(4) of the Act—Form 5A in Schedule 1;
(i) for a warrant issued under section 48 of the Act in circumstances mentioned in subsection 46(7) of the Act—Form 5B in Schedule 1;
(j) for a warrant issued under section 48 of the Act in circumstances mentioned in subsection 46(9) of the Act—Form 5C in Schedule 1;
(k) for a warrant issued under section 48 of the Act in circumstances mentioned in subsection 46(12) of the Act—Form 5D in Schedule 1.
9 Stored communications warrant—prescribed form
For the purposes of paragraph 118(1)(a) of the Act, the following forms are prescribed:
(a) for a stored communications warrant issued as a result of an application other than an international assistance application—Form 6 in Schedule 1;
(b) for a stored communications warrant issued as a result of an international assistance application—Form 6A in Schedule 1.
10 Journalist information warrant—prescribed form
For the purposes of subsection 180U(1) of the Act, Form 7 in Schedule 1 is prescribed.
10A Identifying and blocking malicious SMS messages
(1) For the purposes of subsection 7(2A) of the Act, the matters in subsection (3) of this section are specified for the purposes of determining whether an act or thing done by a person for the purposes of identifying and blocking malicious SMS messages was reasonably necessary in order for the person to perform the person’s duties mentioned in paragraph 7(2)(a) of the Act effectively.
(2) For the purposes of subsection 108(4) of the Act, the matters in subsection (3) of this section are specified for the purposes of determining whether an act or thing done by a person for the purposes of identifying and blocking malicious SMS messages was reasonably necessary in order for the person to perform the person’s duties mentioned in paragraph 108(2)(d) of the Act effectively.
Matters to which court is to have regard
(3) For the purposes of subsections (1) and (2), the matters are the following:
(a) the impacts of malicious SMS messages, and actions taken by users of telecommunications systems in response to those messages, on the operation and maintenance of telecommunications systems;
(b) the extent to which the act or thing assists in identifying and blocking malicious SMS messages;
(c) community expectations that malicious SMS messages should be identified and blocked;
(d) the financial or psychological harm caused, or likely to be caused, by malicious SMS messages;
(e) the extent to which the act or thing is done in a way that minimises any impacts on users of telecommunications systems, including any impacts on the privacy of users.
(4) To avoid doubt, nothing in this section limits the matters that a court may have regard to.
Malicious SMS messages
(5) For the purposes of this section, an SMS message is a message communicated by means of a short message service or a multimedia message service.
(6) For the purposes of this section, an SMS message is a malicious SMS message if:
(a) the SMS message contains a link or a telephone number; and
(b) the purpose, or apparent purpose, of the SMS message is to mislead or deceive a recipient of the SMS message into using the link or telephone number; and
(c) the recipient would be likely to suffer detriment as a result of using the link or telephone number.
Part 3—Access to telecommunications data
Division 1—Journalist information warrants
11 Public Interest Advocate to be given proposed journalist information warrant requests made by the Director‑General of Security
(1) Before requesting a journalist information warrant under section 180J of the Act, the Director‑General of Security must ensure that a copy of the proposed request is given to a Public Interest Advocate who:
(a) has been cleared for security purposes to the same level, and at the same frequency, as that required of an ASIO employee; or
(b) satisfies paragraph 18(1)(b) of this instrument.
(2) If:
(a) a copy of a proposed request is given to a Public Interest Advocate, as required by subsection (1); and
(b) subparagraph 13(1)(b)(ii) applies;
the Director‑General of Security must ensure that a copy of the proposed request is given to another Public Interest Advocate in accordance with this section.
12 Public Interest Advocate to be given proposed journalist information warrant applications made by an enforcement agency
(1) Before making a written application for a journalist information warrant under section 180Q of the Act, the person making the application on behalf of an enforcement agency must ensure that a Public Interest Advocate is given a copy of the proposed application.
(2) Before making an oral application for a journalist information warrant under section 180Q of the Act, the person making the application on behalf of an enforcement agency must ensure that a Public Interest Advocate is notified of the proposed application.
(3) If:
(a) both:
(i) a copy of a proposed application is given to a Public Interest Advocate, as required by subsection (1); and
(ii) subparagraph 13(1)(b)(ii) applies; or
(b) both:
(i) a Public Interest Advocate is notified of a proposed application, as required by subsection (2); and
(ii) the Public Interest Advocate advises that he or she is unable to attend the hearing of the application;
the person making the application must ensure that a copy of the proposed application is given to another Public Interest Advocate in accordance with this section.
13 Public Interest Advocate to deal with proposed journalist information warrant requests and applications
Requests and written applications
(1) Upon receiving a proposed request by the Director‑General of Security or written application by an enforcement agency for a journalist information warrant, the relevant Public Interest Advocate:
(a) may consider the proposed request or application; and
(b) must, as soon as reasonably practicable, advise the applicant that:
(i) he or she will prepare a submission in relation to the proposed request or application; or
(ii) he or she is unable to prepare a submission in relation to the proposed request or application.
Oral applications
(2) Upon being notified about a proposed oral application by an enforcement agency for a journalist information warrant, the relevant Public Interest Advocate must advise the applicant whether he or she is able to attend the hearing of the application.
Note: See section 15.
Further information relating to requests or applications
(3) If:
(a) further information is given to:
(i) the Attorney‑General in relation to a request by the Director‑General of Security; or
(ii) the relevant Part 4‑1 issuing authority in relation to an application by an enforcement agency; and
(b) a Public Interest Advocate is also given the further information or a summary of it;
then:
(c) in the case of a request by the Director‑General of Security for a journalist information warrant, subsection (1) applies as if the further information or summary were a proposed request for such a warrant; and
(d) in the case of a written application by an enforcement agency for a journalist information warrant, subsection (1) applies as if the further information or summary were a proposed written application for such a warrant; and
(e) in the case of an oral application by an enforcement agency for a journalist information warrant, subsection (2) applies as if the further information or summary were a proposed oral application for such a warrant.
14 Public Interest Advocate to prepare submissions
Submission to be prepared
(1) If subparagraph 13(1)(b)(i) applies, the relevant Public Interest Advocate must prepare a submission relating to the proposed request by the Director‑General of Security or application by an enforcement agency, and endeavour to do so within a reasonable period, but no later than 7 days after being given the proposed request or application.
(2) The Public Interest Advocate must include in the submission the facts and considerations he or she considers:
(a) are relevant to one or both of the following:
(i) the decision whether to issue a journalist information warrant (including any facts and considerations which support the conclusion that a journalist information warrant should not be issued);
(ii) the decision about the conditions or restrictions (if any) that are to be specified in the warrant; and
(b) have not been satisfactorily addressed in the proposed request by the Director‑General of Security or application by the enforcement agency.
(3) Subsection (2) does not limit the facts or considerations that the Public Interest Advocate may include in his or her submission.
(4) In determining what is a reasonable period to prepare the submission, the Public Interest Advocate must take into account:
(a) the time that could reasonably be expected to be required to prepare the submission; and
(b) the gravity of the matter in relation to which the proposed request or application relates; and
(c) the urgency of the circumstances in which the proposed request or application is made; and
(d) any other matter that the Public Interest Advocate considers relevant.
Copy of submission to be given to relevant person
(5) The Public Interest Advocate must, as soon as reasonably practicable, provide a copy of the submission to:
(a) in the case of a proposed request by the Director‑General of Security—the Director‑General of Security; and
(b) in the case of a proposed application by an enforcement agency—the following:
(i) if the Public Interest Advocate knows the identity of the person who proposes to make the application on behalf of the enforcement agency and that person is available—that person;
(ii) in any other case—the chief officer of the enforcement agency that is proposing to make the application.
Submission to take into account further information
(6) If:
(a) further information is given to:
(i) the Attorney‑General in relation to a request by the Director‑General of Security; or
(ii) the relevant Part 4‑1 issuing authority in relation to an application by an enforcement agency; and
(b) a Public Interest Advocate is also given the further information or a summary of it; and
(c) subparagraph 13(1)(b)(i) applies;
the Public Interest Advocate must update the submission, or prepare a new submission, relating to the request or application taking into account the further information or summary.
(7) The Public Interest Advocate must endeavour to update the submission, or prepare the new submission, within a reasonable period, but no later than 7 days after being given the further information or summary.
(8) Subsections (2) to (5) apply in relation to updating the submission or preparing the new submission.
Late submissions
(9) If a Public Interest Advocate provides a copy of the submission, or updated submission, after the end of the 7 day period mentioned in subsection (1) or (7), the Attorney‑General or Part 4‑1 issuing authority may consider the late submission or updated submission.
15 Public Interest Advocate’s attendance at hearing of oral application by an enforcement agency for a proposed journalist information warrant
(1) A Public Interest Advocate may attend the hearing of an oral application by an enforcement agency for a journalist information warrant in person, or by telephone or other means of voice communication.
(2) A Public Interest Advocate attending such a hearing may make submissions to the Part 4‑1 issuing authority hearing the application in the presence of the relevant enforcement agency.
(3) Submissions made by the Public Interest Advocate must include the facts and considerations he or she considers:
(a) are relevant to one or both of the following:
(i) the decision whether to issue a journalist information warrant (including any facts and considerations which support the conclusion that a journalist information warrant should not be issued);
(ii) the decision about the conditions or restrictions (if any) that are to be specified in the warrant; and
(b) have not been satisfactorily addressed in the enforcement agency’s application.
(4) Subsection (3) does not limit the facts or considerations that the Public Interest Advocate may include in his or her submissions.
(5) If:
(a) further information is given to a relevant Part 4‑1 issuing authority in relation to an oral application; and
(b) a Public Interest Advocate is also given the further information or a summary of it; and
(c) the Public Interest Advocate has confirmed his or her availability to attend the hearing of the application;
the Public Interest Advocate must update the submission made, or make a new submission, to the Part 4‑1 issuing authority taking into account the further information or summary.
16 Further information, or a copy or summary of information, to be given to Public Interest Advocate
Further information relating to a request by the Director‑General of Security
(1) If, under section 180K of the Act, the Attorney‑General requires the Director‑General of Security to give to the Attorney‑General further information in connection with a request made by the Director‑General of Security, the Attorney‑General may require that:
(a) in the case of further information given in writing—the further information, or a copy of it, be given to a Public Interest Advocate; and
(b) in the case of further information given orally—both:
(i) the further information, or a summary of it, be given to a Public Interest Advocate; and
(ii) the further information or summary be given to the Public Interest Advocate in a particular form, which may be the same form as that in which the further information was given to the Attorney‑General or another form.
(2) In deciding whether to act under subsection (1), the Attorney‑General may have regard to the following matters:
(a) the extent to which further information would be likely to be relevant to a Public Interest Advocate’s preparation of a new submission, or the updating of his or her submission, relating to the request;
(b) the gravity of the matter in relation to which the request relates;
(c) the urgency of the circumstances in which the request is being made;
(d) any other matter that the Attorney‑General considers relevant.
Further information relating to an application by an enforcement agency
(3) If, under section 180R of the Act, a Part 4‑1 issuing authority requires a person to give to the Part 4‑1 issuing authority further information in connection with an application by an enforcement agency, the Part 4‑1 issuing authority may require that:
(a) in the case of further information given in writing—the further information, or a copy of it, be given to a Public Interest Advocate; and
(b) in the case of further information given orally—both:
(i) the further information, or a summary of it, be given to a Public Interest Advocate; and
(ii) the further information or summary be given to the Public Interest Advocate in a particular form, which may be the same form as that in which the further information was given to the Part 4‑1 issuing authority or another form.
(4) In deciding whether to act under subsection (3), a Part 4‑1 issuing authority may have regard to the following matters:
(a) the extent to which further information would be likely to be relevant to a Public Interest Advocate’s preparation of a new submission, or the updating of his or her submission, relating to the application;
(b) the gravity of the matter in relation to which the application relates;
(c) the urgency of the circumstances in which the application is being made;
(d) any other matter that the Part 4‑1 issuing authority considers relevant.
17 Public Interest Advocate to return proposed journalist information warrant requests and applications
(1) After a decision has been made to issue, or refuse to issue, a journalist information warrant, or a request or application for such a warrant is withdrawn, a Public Interest Advocate must:
(a) in the case of a request by the Director‑General of Security—return the following to the Director‑General of Security:
(i) the proposed request to which the warrant relates;
(ii) any submission prepared by a Public Interest Advocate;
(iii) any other document, or a copy of or extract from a document, relating to the proposed request; and
(b) in the case of an application by an enforcement agency—return the following to the enforcement agency:
(i) the proposed application to which the warrant relates;
(ii) any submission prepared by a Public Interest Advocate;
(iii) any other document, or a copy of or extract from a document, relating to the proposed application.
(2) If:
(a) further information is given to:
(i) the Attorney‑General in relation to a request by the Director‑General of Security; or
(ii) the relevant Part 4‑1 issuing authority in relation to an application by an enforcement agency; and
(b) a Public Interest Advocate is also given the further information or a summary of it;
the Public Interest Advocate must return the document containing the information or summary to the relevant person mentioned in subsection (1).
Division 2—Public Interest Advocates
18 Eligibility for appointment
(1) Before declaring a person to be a Public Interest Advocate, the Prime Minister must be satisfied that:
(a) the person is a King’s Counsel or Senior Counsel who has been cleared for security purposes to a level that the Prime Minister considers appropriate; or
(aa) the person is practising as a barrister of a federal court or the Supreme Court of a State or Territory and:
(i) for at least 10 years has engaged in practice as a barrister; and
(ii) has experience in areas of law that the Prime Minister considers relevant; and
(iii) has been cleared for security purposes to a level that the Prime Minister considers appropriate; or
(b) the person has served as a judge of:
(i) the High Court; or
(ii) a court that is or was created by the Parliament under Chapter III of the Constitution; or
(iii) the Supreme Court of a State or Territory; or
(iv) an inferior court of a State or Territory;
but no longer holds a commission as a judge of a court listed in this paragraph.
(2) However, the following persons may not be declared as a Public Interest Advocate:
(a) the Director‑General of Security or a Deputy Director‑General of Security;
(b) an examiner;
(c) the Director of Public Prosecutions or a person performing a similar function appointed under the law of a State or Territory;
(d) the Solicitor‑General of the Commonwealth, or of a State or Territory;
(e) a person who is employed by the Commonwealth, a State or Territory;
(f) a member of the Parliament of the Commonwealth or a State or the Legislative Assembly of a Territory;
(g) a Part 4‑1 issuing authority.
19 Term of appointment
A Public Interest Advocate holds office for the period specified in the written instrument declaring the person to be a Public Interest Advocate. The period must not exceed 5 years.
Note: A Public Interest Advocate may be reappointed: see section 33AA of the Acts Interpretation Act 1901.
20 Remuneration
Entitlement to charge
(1) A Public Interest Advocate may charge remuneration for the time spent by the Public Interest Advocate in the performance of his or her role as a Public Interest Advocate.
(2) Such remuneration is to be borne:
(a) in respect of a request for a journalist information warrant by the Director‑General of Security—by the Organisation; and
(b) in respect of an application for a journalist information warrant by an enforcement agency—by the enforcement agency.
Rate of remuneration
(3) A Public Interest Advocate may charge for remuneration:
(a) per day—at the daily rate payable to senior counsel without the approval of the Attorney‑General, as set out in Appendix D of the Legal Services Directions 2017; and
(b) per hour—at one‑sixth of the maximum daily rate mentioned in paragraph (a), up to a maximum of 6 hours per day.
21 Disclosure of interests
A Public Interest Advocate must give written notice to the Prime Minister of all interests, pecuniary or otherwise, that the Public Interest Advocate has or acquires and that conflicts or could conflict with the proper performance of his or her functions.
22 Conflicts of interest
(1) A Public Interest Advocate must take reasonable steps to avoid any conflict of interest (real or apparent) in connection with the proper performance of his or her functions as a Public Interest Advocate.
(2) If the Public Interest Advocate believes that he or she has a conflict of interest (real or apparent) in relation to the subject‑matter of a proposed request by the Director‑General of Security or proposed application by an enforcement agency for a journalist information warrant, the Public Interest Advocate must:
(a) in the case of a proposed request by the Director‑General of Security—advise the Director‑General of Security that he or she is unable to prepare a submission in relation to the proposed request; or
(b) in the case of a proposed written application by an enforcement agency—advise the applicant that he or she is unable to prepare a submission in relation to the proposed application; or
(c) in the case of a proposed oral application by an enforcement agency—advise the applicant that he or she is unable to attend the hearing of the application.
(3) To avoid doubt, subsection (2) does not limit subparagraph 13(1)(b)(ii) or subsection 13(2).
23 Resignation
(1) A Public Interest Advocate may resign from his or her position by giving the Prime Minister a written resignation.
(2) The resignation takes effect on the day it is received by the Prime Minister or, if a later day is specified in the resignation, on that later day.
24 Termination of appointment
(1) The Prime Minister may revoke the declaration of a Public Interest Advocate:
(a) for misbehaviour by the Public Interest Advocate; or
(b) if the Public Interest Advocate is unable to perform his or her duties because of physical or mental incapacity.
(2) The Prime Minister must revoke the declaration of a Public Interest Advocate if:
(a) the Public Interest Advocate:
(i) becomes bankrupt; or
(ii) takes steps to take the benefit of any law for the relief of bankrupt or insolvent debtors; or
(iii) compounds with one or more of his or her creditors; or
(iv) makes an assignment of his or her remuneration for the benefit of one or more of his or her creditors; or
(b) the Public Interest Advocate fails, without reasonable excuse, to comply with section 21 or 22; or
(c) the Public Interest Advocate is a person mentioned in paragraph 18(1)(a) and either:
(i) ceases to be a King’s Counsel or Senior Counsel; or
(ii) ceases to hold a security clearance to a level that the Prime Minister considers appropriate; or
(ca) the Public Interest Advocate is a person mentioned in paragraph 18(1)(aa) and either:
(i) ceases to be a legal practitioner; or
(ii) ceases to hold a security clearance to a level that the Prime Minister considers appropriate; or
(d) the Public Interest Advocate holds a position mentioned in subsection 18(2).
25 Immunity from legal action
No action, suit or proceeding may be brought against a person who is, or has been, a Public Interest Advocate in relation to anything done, or omitted to be done, in good faith by the Public Interest Advocate:
(a) in the performance, or purported performance, of his or her functions; or
(b) in the exercise, or purported exercise, or his or her powers.
Division 3—Miscellaneous
26 Arrangements with States and Territories
Governor‑General may make arrangements
(1) The Governor‑General may make arrangements with:
(a) the Governor of a State (other than the Northern Territory); and
(b) the Chief Minister for the Australian Capital Territory; and
(c) the Administrator of the Northern Territory;
with respect to the administration of provisions of the Act and this instrument relating to journalist information warrants.
Lack of arrangement does not affect validity of exercise of power or performance of function
(2) The validity of the performance of a function, or the exercise of a power, is not affected by the absence of an arrangement under this section covering the performance of the function, or exercise of the power, relating to the provisions mentioned in subsection (1).
Part 3A—International production orders
26A Designated international agreement—Australia‑US CLOUD Act Agreement
For the purposes of paragraph 3(1)(b) of Schedule 1 to the Act, a copy of the English text of the Agreement between the Government of Australia and the Government of the United States of America on Access to Electronic Data for the Purpose of Countering Serious Crime is set out in Schedule 2 to this instrument.
Part 4—Transitional matters
27 Things done under the Telecommunications (Interception and Access) Regulations 1987
(1) If:
(a) a thing was done for a particular purpose under the Telecommunications (Interception and Access) Regulations 1987 as in force immediately before those Regulations were repealed; and
(b) the thing could be done for that purpose under this instrument;
the thing has effect for the purposes of this instrument as if it had been done under this instrument.
(2) Without limiting subsection (1), a reference in that subsection to a thing being done includes a reference to a notice, application or other instrument being given or made.