Commonwealth: Telecommunications Legislation Amendment (International Production Orders) Act 2021 (Cth)

Telecommunications Legislation Amendment (International Production Orders) Act 2021 No. 78, 2021 An Act to amend the Telecommunications (Interception and Access) Act 1979, and for other purposes Contents 1 Short title 2 Commencement 3 Schedules Schedule 1—Amendments Part 1—General amendments Australian Crime Commission Act 2002 Australian Security Intelligence Organisation Act 1979 Freedom of Information Act 1982 Inspector‑General of Intelligence and Security Act 1986 Intelligence Services Act 2001 International Criminal Court Act 2002 Law Enforcement Integrity Commissioner Act 2006 Mutual Assistance in Criminal Matters Act 1987 Ombudsman Act 1976 Telecommunications (Interception and Access) Act 1979 Part 2—Application provisions Part 3—Amendment contingent on the commencement of the Federal Circuit and Family Court of Australia Act 2021 Telecommunications (Interception and Access) Act 1979 Part 4—Minor amendments Surveillance Devices Act 2004 Telecommunications (Interception and Access) Act 1979 Telecommunications Legislation Amendment (International Production Orders) Act 2021 No. 78, 2021 An Act to amend the Telecommunications (Interception and Access) Act 1979, and for other purposes [Assented to 23 July 2021] The Parliament of Australia enacts: 1 Short title This Act is the Telecommunications Legislation Amendment (International Production Orders) Act 2021. 2 Commencement (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms. Commencement information Column 1 Column 2 Column 3 Provisions Commencement Date/Details 1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table The day this Act receives the Royal Assent. 23 July 2021 2. Schedule 1, Parts 1 and 2 The day after this Act receives the Royal Assent. 24 July 2021 3. Schedule 1, Part 3 The later of: 1 September 2021 (a) immediately after the commencement of the provisions covered by table item 2; and (paragraph (b) applies) (b) the commencement of the Federal Circuit and Family Court of Australia Act 2021. However, the provisions do not commence at all if the event mentioned in paragraph (b) does not occur. 4. Schedule 1, Part 4 The day after this Act receives the Royal Assent. 24 July 2021 Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act. (2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act. 3 Schedules Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms. Schedule 1—Amendments Part 1—General amendments Australian Crime Commission Act 2002 1 Paragraph 19A(5)(d) After "Telecommunications (Interception and Access) Act 1979", insert "and clause 152 of Schedule 1 to that Act". 2 Schedule 1 After "Telecommunications (Interception and Access) Act 1979, sections 63 and 133", insert "and clause 152 of Schedule 1". Australian Security Intelligence Organisation Act 1979 3 At the end of section 18 Add: Communicating information to the Australian Designated Authority etc. (5) A person referred to in subsection (1) may communicate information to: (a) the Australian Designated Authority (within the meaning of Schedule 1 to the Telecommunications (Interception and Access) Act 1979); or (b) an APS employee in the Attorney‑General's Department (within the meaning of that Schedule); for the purpose of the Australian Designated Authority exercising a power, or performing a function, under that Schedule. 4 After subsection 94(2BB) Insert: (2BBA) A report under subsection (1) must also include a statement of: (a) the relevant statistics about applications made by the Organisation under clause 83 of Schedule 1 to the Telecommunications (Interception and Access) Act 1979 during the period; and (b) the relevant statistics about applications made by the Organisation under clause 92 of that Schedule during the period; and (c) the relevant statistics about applications made by the Organisation under clause 101 of that Schedule during the period; and (d) the number of international production orders issued under clause 89 of that Schedule that were given by the Australian Designated Authority to prescribed communications providers during the period; and (e) the number of international production orders issued under clause 98 of that Schedule that were given by the Australian Designated Authority to prescribed communications providers during the period; and (f) the number of international production orders issued under clause 107 of that Schedule that were given by the Australian Designated Authority to prescribed communications providers during the period; and (g) for each designated international agreement—the number of international production orders issued under Part 4 of that Schedule that: (i) were given by the Australian Designated Authority to prescribed communications providers during the period; and (ii) invoked the designated international agreement; and (h) if subparagraph 89(2)(e)(ii) or (f)(ii) of that Schedule applied to one or more international production orders issued under clause 89 of that Schedule during the period—the number of those orders; and (i) the number of international production orders cancelled by the Australian Designated Authority under clause 112 of that Schedule during the period; and (j) the number of international production orders revoked by the Director‑General of Security under clause 116 of that Schedule during the period; and (k) if one or more international production orders issued under Part 4 of that Schedule were cancelled by the Australian Designated Authority under clause 122 of that Schedule during the period—the number of those orders; and (l) if there were one or more occasions during the period when protected information obtained in accordance with an international production order issued under Part 4 of that Schedule was communicated by an ASIO official to a person other than an ASIO official—the number of those occasions; and (m) if one or more objections were received by the Australian Designated Authority under clause 121 of that Schedule during the period in relation to international production orders issued under Part 4 of that Schedule: (i) the number of international production orders to which those objections relate; and (ii) the number of each type of those orders; and (iii) for each designated international agreement—the number of those orders that invoked the designated international agreement. (2BBB) An expression used in subsection (2BBA) has same meaning as in Schedule 1 to the Telecommunications (Interception and Access) Act 1979. Freedom of Information Act 1982 5 Schedule 3 After "Telecommunications (Interception and Access) Act 1979, sections 63 and 133", insert "and clause 152 of Schedule 1". Inspector‑General of Intelligence and Security Act 1986 5A After section 34 Insert: 34AA Disclosure of IPO information to the Ombudsman and the Australian Designated Authority etc. (1) The Inspector‑General, or a member of the staff of the Inspector‑General, may divulge or communicate IPO information to an Ombudsman official if: (a) the information is relevant to the Ombudsman's functions or powers; and (b) the Inspector‑General is satisfied on reasonable grounds that the Ombudsman has satisfactory arrangements in place for protecting the information. (2) The Inspector‑General, or a member of the staff of the Inspector‑General, may divulge or communicate IPO information to an Australian Designated Authority official if: (a) the information is relevant to the Australian Designated Authority's functions or powers under Schedule 1 to the Telecommunications (Interception and Access) Act 1979; and (b) the Inspector‑General is satisfied on reasonable grounds that the Australian Designated Authority has satisfactory arrangements in place for protecting the information. (3) In this section: Australian Designated Authority has the same meaning as in Schedule 1 to the Telecommunications (Interception and Access) Act 1979. Australian Designated Authority official means: (a) the Australian Designated Authority; or (b) a person who: (i) is an APS employee in the Department administered by the Attorney‑General; and (ii) has duties relating to the functions or powers of the Australian Designated Authority under Schedule 1 to the Telecommunications (Interception and Access) Act 1979. IPO information means: (a) protected information within the meaning of Schedule 1 to the Telecommunications (Interception and Access) Act 1979; or (b) information relevant to the operation of that Schedule. Ombudsman official has the same meaning as in the Telecommunications (Interception and Access) Act 1979. Intelligence Services Act 2001 5B After paragraph 29(1)(be) Insert: (bf) to commence, by the earlier of the following: (i) the fifth anniversary of the day on which Schedule 1 to the Telecommunications (Interception and Access) Act 1979 commences; (ii) the third anniversary of the day on which the first designated international agreement (within the meaning of that Schedule) enters into force for Australia; a review of the operation, effectiveness and implications of that Schedule; and International Criminal Court Act 2002 6 After subsection 69A(1) Insert: (1A) The Attorney‑General may authorise, in writing, the provision of material to the ICC if: (a) the ICC has requested the material; and (b) the Attorney‑General is satisfied that the request relates to an investigation being conducted by the Prosecutor or a proceeding before the ICC; and (c) the material is or includes protected information (within the meaning of Schedule 1 to the Telecommunications (Interception and Access) Act 1979) that: (i) was obtained in accordance with an international production order issued under Part 2 or 3 of that Schedule; or (ii) relates to such an international production order; and (d) if the material is or includes protected information (within the meaning of Schedule 1 to the Telecommunications (Interception and Access) Act 1979) that: (i) was obtained in accordance with an international production order issued under clause 30 or 60 of that Schedule; or (ii) relates to such an international production order; the Attorney‑General is satisfied that the investigation is into, or the proceeding relates to, an offence punishable by a maximum penalty of imprisonment for 7 years or more, or imprisonment for life; and (e) the Attorney‑General is satisfied that the material is lawfully in the possession of a law enforcement agency. 7 Subsection 69A(2) Omit "The authorisation", substitute "An authorisation under subsection (1) or (1A)". Law Enforcement Integrity Commissioner Act 2006 8 Subsection 5(1) (paragraph (c) of the definition of law enforcement secrecy provision) After "Telecommunications (Interception and Access) Act 1979", insert "and clause 152 of Schedule 1 to that Act". Mutual Assistance in Criminal Matters Act 1987 9 Subsection 3(1) Insert: international production order has the same meaning as in Schedule 1 to the Telecommunications (Interception and Access) Act 1979. 10 Subsection 3(1) (definition of protected information) Repeal the definition. 11 Subsection 3(1) Insert: protected IPO intercept information means information that: (a) is protected information (within the meaning of Schedule 1 to the Telecommunications (Interception and Access) Act 1979); and (b) either: (i) was obtained in accordance with an international production order issued under clause 30 or 60 of that Schedule; or (ii) relates to such an international production order. protected IPO stored communications information means information that: (a) is protected information (within the meaning of Schedule 1 to the Telecommunications (Interception and Access) Act 1979); and (b) either: (i) was obtained in accordance with an international production order issued under clause 39 or 69 of that Schedule; or (ii) relates to such an international production order. protected IPO telecommunications data information means information that: (a) is protected information (within the meaning of Schedule 1 to the Telecommunications (Interception and Access) Act 1979); and (b) either: (i) is telecommunications data obtained in accordance with an international production order; or (ii) relates to an international production order that required the disclosure of telecommunications data. protected SD information means information that is protected information within the meaning of paragraph 44(1)(a), (aa), (b) or (c) of the Surveillance Devices Act 2004. telecommunications data (except when used in Part IIIB) has the same meaning as in Schedule 1 to the Telecommunications (Interception and Access) Act 1979. 12 Subsection 13A(2) (table item 1, column 1) Omit "protected information", substitute "protected SD information". 13 Subsection 13A(2) (at the end of the table) Add: 4 material that is or includes protected IPO intercept information a serious offence punishable by a maximum penalty of imprisonment for 7 years or more, imprisonment for life or the death penalty 5 material that is or includes: a serious offence punishable by a maximum penalty of imprisonment for 3 years or more, imprisonment for life or the death penalty (a) protected IPO stored communications information; or (b) protected IPO telecommunications data information Ombudsman Act 1976 13A After subsection 35(3) Insert: (3A) Subsection (2) does not prevent an officer from divulging or communicating IPO information to an IGIS official if: (a) the information is relevant to the functions or powers of the Inspector‑General of Intelligence and Security; and (b) the Ombudsman is satisfied on reasonable grounds that the Inspector‑General of Intelligence and Security has satisfactory arrangements in place for protecting the information. (3B) Subsection (2) does not prevent an officer from divulging or communicating IPO information to an Australian Designated Authority official if: (a) the information is relevant to the Australian Designated Authority's functions or powers under Schedule 1 to the Telecommunications (Interception and Access) Act 1979; and (b) the Ombudsman is satisfied on reasonable grounds that the Australian Designated Authority has satisfactory arrangements in place for protecting the information. 13B At the end of section 35 Add: (9) In this section: Australian Designated Authority has the same meaning as in Schedule 1 to the Telecommunications (Interception and Access) Act 1979. Australian Designated Authority official means: (a) the Australian Designated Authority; or (b) a person who: (i) is an APS employee in the Department administered by the Attorney‑General; and (ii) has duties relating to the functions or powers of the Australian Designated Authority under Schedule 1 to the Telecommunications (Interception and Access) Act 1979. IGIS official has the same meaning as in the Telecommunications (Interception and Access) Act 1979. IPO information means: (a) protected information within the meaning of Schedule 1 to the Telecommunications (Interception and Access) Act 1979; or (b) information relevant to the operation of that Schedule. Telecommunications (Interception and Access) Act 1979 14 Title Omit "related", substitute "other". 15 Subsection 5(1) (at the end of the definition of access) Add "This definition does not apply to Schedule 1.". 19 Subsection 5(1) (at the end of the definition of equipment) Add "This definition does not apply to Schedule 1.". 20 Subsection 5(1) (definition of intended recipient) Before "has", insert "(except when used in Schedule 1)". 21 Subsection 5(1) (definition of issuing authority) Before "means", insert "(except when used in Schedule 1)". 22 Subsection 5(1) (at the end of the definition of lawfully accessed information) Add ", but does not include information obtained in accordance with an international production order (within the meaning of Schedule 1)". 23 Subsection 5(1) (definition of nominated AAT member) Before "means", insert "(except when used in Schedule 1)". 24 Subsection 5(1) (definition of record) Before "means" (first occurring), insert "(except when used in Schedule 1)". 25 Subsection 5(1) (definition of relevant statistics) Before "means", insert "(except when used in Schedule 1)". 26 Subsection 5(1) (definition of stored communication) Before "means", insert "(except when used in Schedule 1)". 27 Subsection 5(1) (at the end of the definition of telecommunications network) Add "This definition does not apply to Schedule 1.". 28 Subsection 5(1) (definition of telephone application) Before "means", insert "(except when used in Schedule 1)". 29 Section 5A After "this Act", insert "(other than Schedule 1)". 30 Section 5F After "this Act", insert "(other than Schedule 1)". 31 Section 5G After "this Act", insert "(other than Schedule 1)". 32 Subsection 6(1) After "this Act", insert "(other than Schedule 1)". 33 Subsection 6D(1) (definition of eligible Judge) Before "means", insert "(except when used in Schedule 1)". 34 Subsections 6D(3) and (4) After "this Act", insert "(other than Schedule 1)". 35 After subsection 6DB(3) Insert: (3A) An appointment under subsection (1) has no effect for the purposes of Schedule 1. 36 Subsection 6DB(4) After "this Act", insert "(other than Schedule 1)". 37 Subsection 6E(1) Omit "subsection (2)", substitute "subsections (2) and (3)". 38 At the end of section 6E Add: (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). 39 Section 6P After "this Act", insert "(other than Schedule 1)". 40 After paragraph 7(2)(bb) Insert: (bc) an act or thing done in compliance with an international production order (within the meaning of Schedule 1); or 41 After paragraph 108(2)(cb) Insert: (cc) an act or thing done in compliance with an international production order (within the meaning of Schedule 1); or 42 After section 299 Insert: 299A Schedule 1 Schedule 1 has effect. 43 At the end of the Act Add: Schedule 1—International production orders Note: See section 299A. Part 1—Introduction 1 Simplified outline of this Schedule • This Schedule provides for a scheme to facilitate cooperation in law enforcement matters between Australia and each foreign country that is a party to a designated international agreement. • The scheme deals with electronic information held by, or under the control of, prescribed communications providers. • The scheme has the following components: (a) the issue under this Schedule of international production orders that are directed to prescribed communications providers; (b) in a case where a corresponding order is issued by a competent authority of a foreign country in accordance with a designated international agreement—the exemption of acts or things done in compliance with such an order from Commonwealth laws restricting interception or disclosure. • The scheme extends to matters outside Australia. • An international production order may be issued for purposes in connection with: (a) the investigation of an offence of a serious nature; or (b) the monitoring of a person subject to a control order, so as to protect the public from terrorist acts, prevent support for terrorist acts and hostile acts overseas and detect breaches of the control order; or (c) the carrying out by the Organisation of its functions. • There are 3 types of international production orders: (a) international production orders relating to interception; and (b) international production orders relating to stored communications; and (c) international production orders relating to telecommunications data. 2 Definitions In this Schedule: access, when used in relation to material, includes: (a) access that is subject to a pre‑condition (for example, the use of a password); and (b) access by way of push technology; and (c) access by way of a standing request. account includes: (a) a free account; and (b) a pre‑paid account; and (c) anything that may reasonably be regarded as the equivalent of an account. ASIO official means: (a) the Director‑General of Security; or (b) a Deputy Director‑General of Security; or (c) an ASIO employee; or (d) an ASIO affiliate. Attorney‑General's Department means the Department administered by the Attorney‑General. Australian Designated Authority means the Secretary of the Attorney‑General's Department. based in a foreign country has the meaning given by clause 10A. certified copy: (a) in relation to an international production order issued under clause 30—has the meaning given by clause 174; or (b) in relation to an international production order issued under clause 39—has the meaning given by clause 175; or (c) in relation to an international production order issued under clause 48—has the meaning given by clause 176; or (d) in relation to an international production order issued under clause 60—has the meaning given by subclause 177(2); or (e) in relation to an international production order issued under clause 69—has the meaning given by subclause 177(4); or (f) in relation to an international production order issued under clause 78—has the meaning given by subclause 177(6); or (g) in relation to an international production order issued under clause 89—has the meaning given by subclause 178(2); or (h) in relation to an international production order issued under clause 98—has the meaning given by subclause 178(4); or (i) in relation to an international production order issued under clause 107—has the meaning given by subclause 178(6). control order IPO agency means a control order warrant agency. designated international agreement has the meaning given by clause 3. eligible Judge has the meaning given by clause 14. eligible position‑holder means an ASIO employee, or an ASIO affiliate, who holds, or is acting in, a position in the Organisation that is equivalent to or higher than a position occupied by an Executive Level 2 APS employee. general electronic content service has the meaning given by clause 8. general electronic content service provider means a person who provides a general electronic content service to the public or a section of the public. individual transmission service means a transmission service to the extent to which the service is supplied using a particular telecommunications identifier. individual message/call application service means a message/call application service to the extent to which the service is provided using a particular telecommunications identifier. intended recipient of a communication has the meaning given by clause 11. intercept means: (a) record; or (b) live stream to a single destination. international production order means an international production order issued under this Schedule. issuing authority means a person in respect of whom an appointment is in force under clause 16. manager of a prescribed communications provider means: (a) the chief executive officer (however described) of the provider; or (b) any other individual who is involved in the management of the provider. material means material: (a) whether in the form of text; or (b) whether in the form of data; or (c) whether in the form of speech, music or other sounds; or (d) whether in the form of visual images (moving or otherwise); or (e) whether in the form of signals; or (f) whether in any other form; or (g) whether in any combination of forms. meets the enforcement threshold has the meaning given by clause 125. member of staff of the Attorney‑General's Department means: (a) the Secretary of the Attorney‑General's Department; or (b) an APS employee in that Department. message means a message: (a) whether in the form of text; or (b) whether in the form of data; or (c) whether in the form of speech, music or other sounds; or (d) whether in the form of visual images (animated or otherwise); or (e) whether in the form of signals; or (f) whether in any other form; or (g) whether in any combination of forms. message application service has the meaning given by clause 4. message/call application service means: (a) a message application service; or (b) a voice call application service; or (c) a video call application service. message/call application service provider means a person who provides a message/call application service to the public or a section of the public. network entity means a person who owns or operates a telecommunications network that is used to supply a transmission service to the public or a section of the public. nominated AAT member means a member of the Administrative Appeals Tribunal in respect of whom a nomination is in force under clause 15 to issue international production orders under Division 2 of Part 2, and Division 2 of Part 3, of this Schedule. nominated AAT Security Division member means a member of the Administrative Appeals Tribunal in respect of whom a nomination is in force under clause 17 to issue international production orders under Part 4 of this Schedule. operates in a foreign country has the meaning given by clause 10A. posted on a general electronic content service has the meaning given by clause 9. prescribed communications provider means: (a) a network entity; or (b) a transmission service provider; or (c) a message/call application service provider; or (d) a storage/back‑up service provider; or (e) a general electronic content service provider. protected information means: (a) information obtained in accordance with an international production order; or (b) information about any of the following: (i) an application for an international production order; (ii) the issue of an international production order; (iii) the existence or non‑existence of an international production order; (iv) compliance or non‑compliance with an international production order; (v) the revocation of an international production order; (vi) the cancellation of an international production order. relevant agency means: (a) an interception agency; or (b) a criminal law‑enforcement agency; or (c) an enforcement agency; or (d) a control order IPO agency. relevant statistics, in relation to applications of a particular kind, means the following statistics: (a) how many applications of that kind were made; (b) how many applications of that kind were withdrawn; (c) how many applications of that kind were refused; (d) how many international production orders were issued in response to applications of that kind. senior position‑holder has the same meaning as in the Australian Security Intelligence Organisation Act 1979. serious category 1 offence means: (a) an offence that is punishable by a maximum term of imprisonment of 3 years or more; or (b) an offence that is punishable by imprisonment for life. Note: For the definition of offence, see section 5. serious category 2 offence means: (a) a serious offence (see section 5D); or (b) an offence that is punishable by a maximum term of imprisonment of 7 years or more; or (c) an offence that is punishable by imprisonment for life. Note: For the definition of offence, see section 5. service includes a website. This definition does not apply to the definition of transmission service. statutory requirements certificate means a certificate under subclause 3B(2). storage/back‑up service has the meaning given by clause 7. storage/back‑up service provider means a person who provides a storage/back‑up service to the public or a section of the public. stored communication means: (a) a communication that: (i) has been carried by a transmission service; and (ii) is not being carried by a transmission service; and (iii) is held on equipment that is operated by, and is in the possession of, the transmission service provider who supplied the transmission service; or (b) a communication that: (i) has been carried by a transmission service; and (ii) is not being carried by a transmission service; and (iii) is held on equipment that is operated by, and is in the possession of, the network entity who owns or operates a telecommunications network used to supply the transmission service; or (c) a message that: (i) has been sent or received using a message/call application service provided by a message/call application service provider; and (ii) is held on equipment that is operated by, and is in the possession of, the message/call application service provider; or (d) a recording of a voice call that: (i) has been made or received using a message/call application service provided by a message/call application service provider; and (ii) is held on equipment that is operated by, and is in the possession of, the message/call application service provider; or (e) a recording of a video call that: (i) has been made or received using a message/call application service provided by a message/call application service provider; and (ii) is held on equipment that is operated by, and is in the possession of, the message/call application service provider; or (f) material that: (i) has been uploaded by an end‑user for storage or back‑up by a storage/back‑up service provided by a storage/back‑up service provider; and (ii) is held on equipment that is operated by, and is in the possession of, the storage/back‑up service provider; or (g) material that: (i) is accessible to, or deliverable to, one or more of the end‑users using a general electronic content service provided by a general electronic content service provider; and (ii) is held on equipment that is operated by, and is in the possession of, the general electronic content service provider. telecommunications data: (a) when used in relation to a communication carried by an individual transmission service—means information about the communication (other than information that is the contents or substance of the communication); or (b) when used in relation to an individual transmission service—means information about the individual transmission service; or (c) when used in relation to a message sent or received using an individual message/call application service—means information about the message (other than information that is the contents or substance of the message); or (d) when used in relation to a voice call made or received using an individual message/call application service—means information about the voice call (other than information that is the contents or substance of the voice call); or (e) when used in relation to a video call made or received using an individual message/call application service—means information about the video call (other than information that is the contents or substance of the video call); or (f) when used in relation to an individual message/call application service—means information about the individual message/call application service; or (g) when used in relation to material that has been uploaded by an end‑user for storage or back‑up by a storage/back‑up service—means information about the material (other than information that is the content or substance of the material); or (h) when used in relation to an account that a person has with a storage/back‑up service—means information relating to the account; or (i) when used in relation to material that has been posted on a general electronic content service—means information about the material (other than information that is the content or substance of the material); or (j) when used in relation to an account that a person has with a general electronic content service—means information relating to the account; or (k) when used otherwise than in relation to a matter or thing mentioned in any of the preceding paragraphs—means: (i) information about a communication carried by an individual transmission service (other than information that is the contents or substance of the communication); or (ii) information about an individual transmission service; or (iii) information about a message sent or received using an individual message/call application service (other than information that is the contents or substance of the message); or (iv) information about a voice call made or received using an individual message/call application service (other than information that is the contents or substance of the voice call); or (v) information about a video call made or received using an individual message/call application service (other than information that is the contents or substance of the video call); or (vi) information about an individual message/call application service; or (vii) information about material that has been uploaded by an end‑user for storage or back‑up by a storage/back‑up service (other than information that is the content or substance of the material); or (viii) information relating to an account that a person has with a storage/back‑up service; or (ix) information about material that has been posted on a general electronic content service (other than information that is the content or substance of the material); or (x) information relating to an account that a person has with a general electronic content service. telecommunications identifier means: (a) the address or identifier used by a network entity or a transmission service provider for the purposes of: (i) directing a communication to its intended destination; or (ii) identifying the origin of a communication; or (b) the address or identifier used by a message/call application service provider for the purposes of: (i) directing a message to its intended destination; or (ii) identifying the origin of a message; or (c) the address or identifier used by a message/call application service provider for the purposes of: (i) directing a voice call to its intended destination; or (ii) identifying the origin of a voice call; or (d) the address or identifier used by a message/call application service provider for the purposes of: (i) directing a video call to its intended destination; or (ii) identifying the origin of a video call; and includes (for example): (e) a telephone number; and (f) a unique identifier for a device (for example, an electronic serial number or a Media Access Control address); and (g) a user account identifier; and (h) an internet protocol address; and (i) an email address. telecommunications network means a system, or series of systems, that carries, or is capable of carrying, communications by means of guided and/or unguided electromagnetic energy. telephone application means an application made by telephone for an international production order. telephone number includes a mobile telephone number. transmission service means a service for carrying communications by means of guided and/or unguided electromagnetic energy. transmission service provider means a person who supplies a transmission service to the public or a section of the public. uploaded has a meaning affected by clause 10. urgent circumstances has a meaning affected by clause 17A. use has a meaning affected by clause 12. video call includes a video call that has an audio component. video call application service has the meaning given by clause 6. voice call includes a call that involves a recorded or synthetic voice. voice call application service has the meaning given by clause 5. 3 Designated international agreement Bilateral agreement (1) For the purposes of this Schedule, if: (a) there is an agreement between Australia and a foreign country; and (b) a copy of the English text of the agreement is set out in the regulations; and (c) the agreement has entered into force for Australia and the foreign country; then: (d) if the agreement is affected by an amendment, where: (i) a copy of the English text of the amendment is set out in the regulations; and (ii) the amendment has entered into force for Australia and the foreign country; the agreement, as affected by such an amendment, is a designated international agreement; or (e) if paragraph (d) does not apply—the agreement is a designated international agreement. Note: An agreement mentioned in paragraph (a) is a treaty to which Australia is a party. Proposed treaty actions, such as amendments of treaties and extensions of the duration of treaties, are subject to Australia's treaty‑making process. In 2021, the parliamentary scrutiny process for proposed treaty actions included tabling in both Houses of the Parliament and consideration by the Joint Standing Committee on Treaties. (1A) If: (a) there is an agreement between Australia and a foreign country; and (b) the agreement deals with (among other things) the issue of orders (however described) by a competent authority (however described) of the foreign country; a copy of the English text of the agreement must not be set out in regulations made for the purposes of paragraph (1)(b) unless a statutory requirements certificate is in force under clause 3B in relation to the foreign country and the agreement. (2) If: (a) there is an agreement between Australia and a foreign country; and (b) the agreement deals with (among other things) the issue of orders (however described) by a competent authority (however described) of the foreign country; and (c) one or more offences against the law of the foreign country are death penalty offences; a copy of the English text of the agreement must not be set out in regulations made for the purposes of paragraph (1)(b) unless the Minister has received a written assurance from the government of the foreign country, relating to the use or non‑use of Australian‑sourced information obtained by virtue of the agreement, in connection with any proceeding by way of a prosecution for a death penalty offence in the foreign country. For the purposes of this subclause, information is obtained by virtue of the agreement if it is obtained in accordance with such an order. Note 1: For Australian‑sourced information, see subclause (8). Note 2: For death penalty offence, see subclause (7A). Multilateral agreement (3) For the purposes of this Schedule, if: (a) there is an agreement between Australia and 2 or more foreign countries; and (b) a copy of the English text of the agreement is set out in the regulations; and (c) the agreement has entered into force for Australia; then: (d) if the agreement is affected by an amendment, where: (i) a copy of the English text of the amendment is set out in the regulations; and (ii) the amendment has entered into force for Australia; the agreement, as affected by such an amendment, is a designated international agreement; or (e) if paragraph (d) does not apply—the agreement is a designated international agreement. Note: An agreement mentioned in paragraph (a) is a treaty to which Australia is a party. Proposed treaty actions, such as amendments of treaties and extensions of the duration of treaties, are subject to Australia's treaty‑making process. In 2021, the parliamentary scrutiny process for proposed treaty actions included tabling in both Houses of the Parliament and consideration by the Joint Standing Committee on Treaties. (4) If there is an agreement between Australia and 2 or more foreign countries, the regulations may declare that one or more of those foreign countries are recognised parties to the agreement for the purposes of this Schedule. (4A) If: (a) there is an agreement between Australia and 2 or more foreign countries; and (b) the agreement deals with (among other things) the issue of orders (however described) by a competent authority (however described) of each of the foreign countries; a foreign country that is a party to the agreement must not be declared under subclause (4) unless a statutory requirements certificate is in force under clause 3B in relation to the foreign country and the agreement. (5) If: (a) there is an agreement between Australia and 2 or more foreign countries; and (b) the agreement deals with (among other things) the issue of orders (however described) by a competent authority (however described) of each of the foreign countries; and (c) one or more offences against the law of one or more of those foreign countries are death penalty offences; a foreign country covered by paragraph (c) must not be declared under subclause (4) unless the Minister has received a written assurance from the government of the foreign country, relating to the use or non‑use of Australian‑sourced information obtained by virtue of the agreement, in connection with any proceeding by way of a prosecution for a death penalty offence in the foreign country. For the purposes of this subclause, information is obtained by virtue of the agreement if it is obtained in accordance with such an order. Note 1: For Australian‑sourced information, see subclause (8). Note 2: For death penalty offence, see subclause (7A). (6) If: (a) apart from this subclause, there is a designated international agreement between Australia and one or more foreign countries; and (b) one or more of those foreign countries are not recognised parties to the agreement; this Schedule (other than subclauses (3) and (4)) has effect as if those foreign countries were not parties to the agreement. Note: For recognised parties, see subclause (4). Announcement by Minister (7) The Minister must announce, by notifiable instrument, the day an agreement mentioned in subclause (1) or (3) enters into force for Australia. Death penalty offence (7A) For the purposes of this clause, death penalty offence means an offence against a law of a foreign country that is punishable by death. Australian‑sourced information (8) For the purposes of the application of subclause (2) or (5) to an order, information obtained in accordance with the order is Australian‑sourced information if the order: (a) requires an act or thing to be done in Australia; or (b) is directed to an individual who is physically present in Australia; or (c) is directed to a body corporate that is incorporated in Australia; or (d) is directed to a body established by or under a law of the Commonwealth, a State or a Territory. 3A Disallowance of regulations relating to designated international agreements Scope (1) This clause applies to regulations made for the purposes of clause 3. Disallowance (2) Either House of the Parliament may, following a motion upon notice, pass a resolution disallowing the regulations. For the resolution to be effective: (a) the notice must be given in that House within 15 sitting days of that House after the copy of the regulations was tabled in that House under section 38 of the Legislation Act 2003; and (b) the resolution must be passed, in pursuance of the motion, within 15 sitting days of that House after the giving of that notice. (3) If neither House passes such a resolution, the regulations takes effect on the day immediately after the last day upon which such a resolution could have been passed if it were assumed that notice of a motion to disallow the regulations was given in each House on the last day of the 15 sitting day period of that House mentioned in paragraph (2)(a). (4) If: (a) notice of a motion to disallow the regulations is given in a House of the Parliament within 15 sitting days of that House after the copy of the regulations was tabled in that House under section 38 of the Legislation Act 2003; and (b) at the end of 15 sitting days of that House after the giving of that notice of motion: (i) the notice has not been withdrawn and the motion has not been called on; or (ii) the motion has been called on, moved and (where relevant) seconded and has not been withdrawn or otherwise disposed of; the regulations is then taken to have been disallowed, and subclause (3) does not apply to the regulations. (5) Section 42 (disallowance) of the Legislation Act 2003 does not apply to the regulations. Note 1: The 15 sitting day notice period mentioned in paragraph (2)(a) of this clause is the same as the 15 sitting day notice period mentioned in paragraph 42(1)(a) of the Legislation Act 2003. Note 2: The 15 sitting day disallowance period mentioned in paragraph (2)(b) of this clause is the same as the 15 sitting day disallowance period mentioned in paragraph 42(1)(b) of the Legislation Act 2003. 3B Statutory requirements certificate—designated international agreements Scope (1) This section applies if: (a) there is an agreement between Australia and one or more foreign countries; and (b) the agreement deals with (among other things) the issue of orders (however described) by a competent authority (however described) of the foreign country, or each of the foreign countries, concerned. Certificate (2) The Attorney‑General may, after consulting the Minister and the Minister for Foreign Affairs, issue a certificate (a statutory requirements certificate) in relation to: (a) a foreign country that is a party to the agreement; and (b) the agreement. (3) A statutory requirements certificate is a notifiable instrument. (4) The Attorney‑General must not issue a statutory requirements certificate in relation to: (a) a foreign country that is a party to the agreement; and (b) the agreement; unless the Attorney‑General is satisfied that: (c) the agreement is appropriate in the circumstances, having regard only to: (i) the foreign country's respect for the rule of law; and (ii) the foreign country's respect for its obligations under international law relating to human rights; and (d) the following requirements are met in relation to orders (however described) issued by a competent authority (however described) of the foreign country: (i) the agreement provides that orders are to be issued in compliance with the law of the foreign country; (ii) the agreement provides that orders may only be issued for the purposes of obtaining information relevant to the prevention, detection, investigation or prosecution of serious crime (as defined in the agreement); (iii) the agreement provides that orders may not be issued for the purposes of investigating, prosecuting or punishing a person on account of the person's political opinions; (iv) the agreement, so far as it relates to orders, is appropriate in the circumstances, having regard only to the matters set out in subclause (5); (v) the agreement does not permit orders to be issued for the purposes of obtaining information about the communications of a person who is an Australian citizen or a permanent resident of Australia; (vi) the agreement provides for limitations and safeguards relating to the use, handling and disclosure of information obtained in accordance with orders; (vii) the agreement does not permit orders to be issued on behalf of another country; (viii) the agreement does not impose obligations on the foreign country to share information it has obtained in accordance with orders with another country; and (e) if one or more offences against the law of the foreign country are death penalty offences (within the meaning of clause 3)—the Minister has received a written assurance from the government of the foreign country in accordance with subclause 3(2) or (5). (5) For the purposes of subparagraph (4)(d)(iv), the matters are: (a) criteria for the issuing of orders; and (b) limitations on the scope and objects of orders; and (c) limits on the periods for which orders are in force; set out in the agreement or the law of the foreign country. Copy of certificate to be given to the Chair of the Joint Standing Committee on Treaties (6) If the Attorney‑General issues a statutory requirements certificate, the Attorney‑General must: (a) give a copy of the certificate to the Chair of the Joint Standing Committee on Treaties; and (b) do so as soon as practicable after the certificate is issued. 3C Australia's treaty‑making process Nothing in this Schedule is intended to modify or limit the application of Australia's treaty‑making process relating to a designated international agreement, including the following proposed treaty actions: (a) an amendment of a designated international agreement; (b) an extension of the duration of a designated international agreement. 4 Message application service (1) For the purposes of this Schedule, message application service means a service that enables end‑users to send or receive messages to or from other end‑users using a transmission service. (2) For the purposes of subclause (1), it is immaterial whether the service also enables end‑users to send or receive messages to or from persons (other than end‑users) using a transmission service. Example: A webmail service that enables end‑users to send emails to, or receive emails from, any email address. (3) For the purposes of this Schedule, a person does not provide a message application service merely because the person supplies a transmission service that enables messages to be sent or received. (4) For the purposes of this Schedule, a person does not provide a message application service merely because the person provides a billing service, or a fee collection service, in relation to a message application service. 5 Voice call application service (1) For the purposes of this Schedule, voice call application service means a service that enables end‑users to make or receive voice calls to or from other end‑users using a transmission service. (2) For the purposes of subclause (1), it is immaterial whether the service also enables end‑users to make or receive voice calls to or from persons (other than end‑users) using a transmission service. Example: A VOIP service that enables end‑users to make voice calls to, or receive voice calls from, any telephone number. (3) For the purposes of this Schedule, a person does not provide a voice call application service merely because the person supplies a transmission service that enables voice calls to be made or received. (4) For the purposes of this Schedule, a person does not provide a voice call application service merely because the person provides a billing service, or a fee collection service, in relation to a voice call application service. 6 Video call application service (1) For the purposes of this Schedule, video call application service means a service that enables end‑users to make or receive video calls to or from other end‑users using a transmission service. (2) For the purposes of subclause (1), it is immaterial whether the service also enables end‑users to make or receive video calls to or from persons (other than end‑users) using a transmission service. (3) For the purposes of this Schedule, a person does not provide a video call application service merely because the person supplies a transmission service that enables video calls to be made or received. (4) For the purposes of this Schedule, a person does not provide a video call application service merely because the person provides a billing service, or a fee collection service, in relation to a video call application service. 7 Storage/back‑up service (1) For the purposes of this Schedule, storage/back‑up service means a service that enables end‑users to store or back‑up material, where the uploading of the material for storage or back‑up is by means of a transmission service. (2) For the purposes of this Schedule, a person does not provide a storage/back‑up service merely because the person supplies a transmission service that enables material to be uploaded for storage or back‑up. (3) For the purposes of this Schedule, a person does not provide a storage/back‑up service merely because the person provides a billing service, or a fee collection service, in relation to a storage/back‑up service. 8 General electronic content service (1) For the purposes of this Schedule, general electronic content service means: (a) a service that allows end‑users to access material using a transmission service; or (b) a service that delivers material to persons having equipment appropriate for receiving that material, where the delivery of the service is by means of a transmission service; but does not include: (c) a message/call application service; or (d) a storage/back‑up service; or (e) a service prescribed by the regulations. (2) For the purposes of this Schedule, a person does not provide a general electronic content service merely because the person supplies a transmission service that enables material to be accessed or delivered. (3) For the purposes of this Schedule, a person does not provide a general electronic content service merely because the person provides a billing service, or a fee collection service, in relation to a general electronic content service. 9 When material is posted on a general electronic content service For the purposes of this Schedule, material is posted on a general electronic content service by a person if: (a) the person is an end‑user of the service; and (b) the person causes the material to be accessible to, or delivered to, one or more other end‑users using the service. 10 Uploaded material For the purposes of this Schedule, if: (a) a person uses a device; and (b) the device has software that automatically uploads material for storage or back‑up by a storage/back‑up service; and (c) as a result, material is automatically uploaded for storage or back‑up by the storage/back‑up service; the person is taken have to uploaded the material for storage or back‑up by the storage/back‑up service. 10A When a prescribed communications provider is based in, or operates in, a foreign country Based in a foreign country—individual (1) For the purposes of the application of this Schedule to a prescribed communications provider who is an individual, the provider is based in a foreign country if, and only if, the provider is ordinarily resident in the foreign country. Based in a foreign country—body corporate (2) For the purposes of the application of this Schedule to a prescribed communications provider that is a body corporate, the provider is based in a foreign country if, and only if: (a) the provider is incorporated in the foreign country; or (b) the provider has its principal place of business in the foreign country. Operates in a foreign country (3) For the purposes of this Schedule, a prescribed communications provider operates in a foreign country if, and only if: (a) the provider handles communications in the foreign country; or (b) the provider holds stored communications in the foreign country; or (c) the provider holds telecommunications data in the foreign country. 11 Intended recipient of a communication For the purposes of this Schedule, 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 individual transmission service that was used to receive the communication. 12 Use of a thing A reference in this Schedule to the use of a thing is a reference to the use of the thing either: (a) in isolation; or (b) in conjunction with one or more other things. Note: See also section 18A of the Acts Interpretation Act 1901. 13 Identification of a particular person For the purposes of this Schedule, a particular person may be identified: (a) by the person's full name; or (b) by a name by which the person is commonly known; or (c) as the person to whom a particular individual transmission service is supplied; or (d) as the person to whom a particular individual message/call application service is provided; or (e) as the person who has a particular account with a prescribed communications provider; or (f) as the person who has a particular telephone number; or (g) as the person who has a particular email address; or (h) as the person who has a particular internet protocol address; or (i) as the person who has a device that has a particular unique identifier (for example, an electronic serial number or a Media Access Control address); or (j) by any other unique identifying factor that is applicable to the person. 14 Eligible judge (1) For the purposes of this Schedule, eligible Judge means a Judge in relation to whom a consent under subclause (2) and a declaration under subclause (3) are in force. (2) A Judge may, by writing, consent to be nominated by the Attorney‑General under subclause (3). (3) The Attorney‑General may, by writing, declare Judges in relation to whom consents are in force under subclause (2) to be eligible Judges for the purposes of this Schedule. (4) An eligible Judge has, in relation to the performance or exercise of a function or power conferred on an eligible Judge by this Schedule, the same protection and immunity as a Justice of the High Court has in relation to proceedings in the High Court. 15 Nominated AAT member (1) The Attorney‑General may, by writing, nominate a person who holds one of the following appointments to the Administrative Appeals Tribunal to issue international production orders under Division 2 of Part 2, and Division 2 of Part 3, of this Schedule: (a) Deputy President; (b) senior member (of any level); (c) member (of any level). (2) Despite subclause (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 the nominated AAT member ceases to hold an appointment of a kind set out in subclause (1). (4) A nominated AAT member has, in relation to the performance or exercise of a function or power conferred on a nominated AAT member by this Schedule, the same protection and immunity as a Justice of the High Court has in relation to proceedings in the High Court. 16 Issuing authority (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 (ii) a magistrate; and in relation to whom a consent under subclause (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 so 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 subclause (1). (3) A person's appointment ceases to have effect if the person ceases to be a person whom the Attorney‑General could appoint under this clause. (4) An appointment under subclause (1) has no effect for the purposes of a provision of this Act (other than this Schedule). (5) An issuing authority has, in relation to the performance or exercise of a function or power conferred on an issuing authority by this Schedule, the same protection and immunity as a Justice of the High Court has in relation to proceedings in the High Court. 17 Nominated AAT Security Division member (1) The Attorney‑General may, by writing, nominate a person who: (a) holds one of the following appointments to the Administrative Appeals Tribunal: (ii) senior member (of any level); (iii) member (of any level); and (b) is a member of the Security Division of the Administrative Appeals Tribunal; to issue international production orders under Part 4 of this Schedule. (2) Despite subclause (1), the Attorney‑General must not nominate a person who holds an appointment as a part‑time senior member or a member of the Administrative Appeals 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 of a person under subclause (1) ceases to have effect if: (a) the person ceases to hold an appointment of a kind set out in subclause (1); or (b) the person ceases to be a member of the Security Division of the Administrative Appeals Tribunal. (3A) The Attorney‑General may, by writing, nominate a person who is a Deputy President of the Administrative Appeals Tribunal to issue international production orders under Part 4 of this Schedule. (3B) A nomination of a person under subclause (3A) ceases to have effect if the person ceases to be a Deputy President of the Administrative Appeals Tribunal. (4) A nominated AAT Security Division member has, in relation to the performance or exercise of a function or power conferred on a nominated AAT Security Division member by this Schedule, the same protection and immunity as a Justice of the High Court has in relation to proceedings in the High Court. (5) For the purposes of this clause, a person is a member of the Security Division of the Administrative Appeals Tribunal if the person: (a) is the head of that Division; or (b) has been assigned to that Division. 17A Urgent circumstances (1) For the purposes of this Schedule, it is necessary, because of urgent circumstances, to make an application under Part 2 or 3 of this Schedule for an international production order by telephone if, and only if: (a) an imminent risk of serious harm to a person or substantial damage to property exists; and (b) the order is necessary for the purpose of dealing with that risk; and (c) it is not practicable in the circumstances to make the application in writing. (2) For the purposes of this Schedule, it is necessary, because of urgent circumstances, to make an application under Part 4 of this Schedule for an international production order by telephone if, and only if: (a) the delay caused by making a written application may be prejudicial to security; and (b) it is not practicable in the circumstances to make the application in writing. (3) For the purposes of this Schedule, it is necessary, because of urgent circumstances, for the Attorney‑General to consent orally to the making of an application under Part 4 of this Schedule for an international production order if, and only if: (a) the delay caused by consenting in writing may be prejudicial to security; and (b) it is not practicable in the circumstances to consent in writing. 18 Meaning of expressions in other provisions of this Act In determining the meaning of an expression (other than "international production order") used in a provision of this Act (other than this Schedule), an