Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 (Cth)

Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 No. 148, 2018 Compilation No. 1 Compilation date: 1 September 2021 Includes amendments up to: Act No. 13, 2021 Registered: 6 November 2021 About this compilation This compilation This is a compilation of the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 that shows the text of the law as amended and in force on 1 September 2021 (the compilation date). The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law. Uncommenced amendments The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law. Application, saving and transitional provisions for provisions and amendments If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes. Editorial changes For more information about any editorial changes made in this compilation, see the endnotes. Modifications If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law. Self‑repealing provisions If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes. Contents 1 Short title 2 Commencement 3 Schedules Schedule 1—Industry assistance Part 1—Amendments Administrative Decisions (Judicial Review) Act 1977 Australian Security Intelligence Organisation Act 1979 Criminal Code Act 1995 Independent National Security Legislation Monitor Act 2010 Telecommunications Act 1997 Telecommunications (Interception and Access) Act 1979 Part 2—Amendments contingent on the commencement of the Federal Circuit and Family Court of Australia Act 2021 Telecommunications Act 1997 Schedule 2—Computer access warrants etc. Part 1—Amendments Australian Security Intelligence Organisation Act 1979 Mutual Assistance in Criminal Matters Act 1987 Surveillance Devices Act 2004 Telecommunications Act 1997 Telecommunications (Interception and Access) Act 1979 Part 2—Application provisions Part 3—Amendments contingent on the commencement of the Crimes Legislation Amendment (International Crime Cooperation and Other Measures) Act 2018 International Criminal Court Act 2002 International War Crimes Tribunals Act 1995 Surveillance Devices Act 2004 Schedule 3—Search warrants issued under the Crimes Act 1914 Crimes Act 1914 Schedule 4—Search warrants issued under the Customs Act 1901 Customs Act 1901 Schedule 5—Australian Security Intelligence Organisation Australian Security Intelligence Organisation Act 1979 Endnotes Endnote 1—About the endnotes Endnote 2—Abbreviation key Endnote 3—Legislation history Endnote 4—Amendment history An Act to amend the law relating to telecommunications, computer access warrants and search warrants, and for other purposes 1 Short title This Act is the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018. 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. 8 December 2018 2. Schedule 1, Part 1 The day after this Act receives the Royal Assent. 9 December 2018 3. Schedule 1, Part 2 The later of: 1 September 2021 (a) immediately after the commencement of Part 1 of Schedule 1 to this Act; and (paragraph (b) applies) (b) immediately after the commencement of section 3 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 2, Parts 1 and 2 The day after this Act receives the Royal Assent. 9 December 2018 5. Schedule 2, Part 3 The later of: 9 December 2018 (a) immediately after the commencement of Part 1 of Schedule 2 to this Act; and (paragraph (a) applies) (b) immediately after the commencement of Part 6 of Schedule 1 to the Crimes Legislation Amendment (International Crime Cooperation and Other Measures) Act 2018. However, the provisions do not commence at all if the event mentioned in paragraph (b) does not occur. 6. Schedules 3, 4 and 5 The day after this Act receives the Royal Assent. 9 December 2018 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—Industry assistance Part 1—Amendments Administrative Decisions (Judicial Review) Act 1977 1 After paragraph (daaa) of Schedule 1 Insert: (daaaa) decisions under Part 15 of the Telecommunications Act 1997; Australian Security Intelligence Organisation Act 1979 1A After subsection 94(2B) Insert: (2BA) A report under subsection (1) must also include a statement of: (a) the total number of technical assistance requests given by the Director‑General under paragraph 317G(1)(a) of the Telecommunications Act 1997 during the period; and (b) the total number of technical assistance notices given by the Director‑General under section 317L of the Telecommunications Act 1997 during the period; and (c) the total number of technical capability notices given by the Attorney‑General under section 317T of the Telecommunications Act 1997 during the period that relate to the Organisation. (2BB) For the purposes of paragraph (2BA)(c), a technical capability notice relates to the Organisation if the acts or things specified in the notice: (a) are directed towards ensuring that a designated communications provider (within the meaning of Part 15 of the Telecommunications Act 1997) is capable of giving listed help (within the meaning of section 317T of that Act) to the Organisation in relation to a matter covered by paragraph 317T(2)(a) of that Act; or (b) are by way of giving help to the Organisation in relation to a matter covered by paragraph 317T(2)(b) of the Telecommunications Act 1997. Criminal Code Act 1995 2 After subsection 474.6(7) of the Criminal Code Insert: (7A) A person is not criminally responsible for an offence against subsection (5) if the conduct of the person: (a) is in accordance with a technical assistance request; or (b) is in compliance with a technical assistance notice; or (c) is in compliance with a technical capability notice. 3 After subparagraph 476.2(4)(b)(iii) of the Criminal Code Insert: or (iv) in accordance with a technical assistance request; or (v) in compliance with a technical assistance notice; or (vi) in compliance with a technical capability notice; 4 Dictionary in the Criminal Code Insert: technical assistance notice has the same meaning as in Part 15 of the Telecommunications Act 1997. technical assistance request has the same meaning as in Part 15 of the Telecommunications Act 1997. technical capability notice has the same meaning as in Part 15 of the Telecommunications Act 1997. Independent National Security Legislation Monitor Act 2010 4A At the end of subsection 6(1) Add: ; (e) the function conferred by subsection (1D). 4B Before subsection 6(2) Insert: (1D) The Independent National Security Legislation Monitor must: (a) review the operation, effectiveness and implications of the amendments made by the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018; and (b) do so as soon as practicable after the 18‑month period beginning on the day that Act receives the Royal Assent. Telecommunications Act 1997 5 Section 7 Insert: ASIO means the Australian Security Intelligence Organisation. 6 Section 7 (paragraph (a) of the definition of civil penalty provision) After "this Act" (first occurring), insert "(other than section 317ZB)". 7 After Part 14 Insert: Part 15—Industry assistance Division 1—Introduction 317A Simplified outline of this Part • The Director‑General of Security, the Director‑General of the Australian Secret Intelligence Service, the Director‑General of the Australian Signals Directorate or the chief officer of an interception agency may give a technical assistance request to a designated communications provider. • A technical assistance request may ask the provider to do acts or things on a voluntary basis that are directed towards ensuring that the provider is capable of giving certain types of help to ASIO, the Australian Secret Intelligence Service, the Australian Signals Directorate or an interception agency in relation to: (a) in the case of ASIO—safeguarding national security; or (b) in the case of the Australian Secret Intelligence Service—the interests of Australia's national security, the interests of Australia's foreign relations or the interests of Australia's national economic well‑being; or (c) in the case of the Australian Signals Directorate—providing material, advice and other assistance on matters relating to the security and integrity of information that is processed, stored or communicated by electronic or similar means; or (d) in the case of an interception agency—enforcing the criminal law, so far as it relates to serious Australian offences; or (e) in the case of an interception agency—assisting the enforcement of the criminal laws in force in a foreign country, so far as those laws relate to serious foreign offences. • A technical assistance request may ask the provider to give help to ASIO, the Australian Secret Intelligence Service, the Australian Signals Directorate or an interception agency on a voluntary basis in relation to: (a) in the case of ASIO—safeguarding national security; or (b) in the case of the Australian Secret Intelligence Service—the interests of Australia's national security, the interests of Australia's foreign relations or the interests of Australia's national economic well‑being; or (c) in the case of the Australian Signals Directorate—providing material, advice and other assistance on matters relating to the security and integrity of information that is processed, stored or communicated by electronic or similar means; or (d) in the case of an interception agency—enforcing the criminal law, so far as it relates to serious Australian offences; or (e) in the case of an interception agency—assisting the enforcement of the criminal laws in force in a foreign country, so far as those laws relate to serious foreign offences. • The Director‑General of Security or the chief officer of an interception agency may give a designated communications provider a notice, to be known as a technical assistance notice, that requires the provider to do acts or things by way of giving certain types of help to ASIO or the agency in relation to: (a) enforcing the criminal law, so far as it relates to serious Australian offences; or (b) assisting the enforcement of the criminal laws in force in a foreign country, so far as those laws relate to serious foreign offences; or (c) safeguarding national security. • The Attorney‑General may give a designated communications provider a notice, to be known as a technical capability notice. • A technical capability notice may require the provider to do acts or things directed towards ensuring that the provider is capable of giving certain types of help to ASIO or an interception agency in relation to: (a) enforcing the criminal law, so far as it relates to serious Australian offences; or (b) assisting the enforcement of the criminal laws in force in a foreign country, so far as those laws relate to serious foreign offences; or (c) safeguarding national security. • A technical capability notice may require the provider to do acts or things by way of giving certain types of help to ASIO or an interception agency in relation to: (a) enforcing the criminal law, so far as it relates to serious Australian offences; or (b) assisting the enforcement of the criminal laws in force in a foreign country, so far as those laws relate to serious foreign offences; or (c) safeguarding national security. 317B Definitions In this Part: 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. ASIO affiliate has the same meaning as in the Australian Security Intelligence Organisation Act 1979. ASIO employee has the same meaning as in the Australian Security Intelligence Organisation Act 1979. chief officer of an interception agency has the meaning given by section 317ZM. contracted service provider, in relation to a designated communications provider, means a person who performs services for or on behalf of the provider, but does not include a person who performs such services in the capacity of an employee of the provider. designated communications provider has the meaning given by section 317C. electronic protection includes: (a) authentication; and (b) encryption. electronic service has the meaning given by section 317D. eligible activities of a designated communications provider has the meaning given by section 317C. entrusted ASD person means a person who: (a) is a staff member of the Australian Signals Directorate; or (b) has entered into a contract, agreement or arrangement with the Australian Signals Directorate; or (c) is an employee or agent of a person who has entered into a contract, agreement or arrangement with the Australian Signals Directorate. entrusted ASIO person means an entrusted person (within the meaning of the Australian Security Intelligence Organisation Act 1979). entrusted ASIS person means a person who: (a) is a staff member or agent of the Australian Secret Intelligence Service; or (b) has entered into a contract, agreement or arrangement with the Australian Secret Intelligence Service; or (c) is an employee or agent of a person who has entered into a contract, agreement or arrangement with the Australian Secret Intelligence Service. giving help: (a) when used in relation to ASIO—includes giving help to an ASIO employee or an ASIO affiliate; or (b) when used in relation to the Australian Secret Intelligence Service—includes giving help to a staff member of the Australian Secret Intelligence Service; or (c) when used in relation to the Australian Signals Directorate—includes giving help to a staff member of the Australian Signals Directorate; or (d) when used in relation to an interception agency—includes giving help to an officer of the agency. Home Affairs Minister means the Minister administering the Telecommunications (Interception and Access) Act 1979. IGIS official has the same meaning as in the Australian Security Intelligence Organisation Act 1979. interception agency means: (a) the Australian Federal Police; or (b) the Australian Crime Commission; or (c) the Police Force of a State or the Northern Territory. listed act or thing has the meaning given by section 317E. 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 any other form; or (f) whether in any combination of forms. officer of an interception agency has the meaning given by section 317ZM. Ombudsman official means: (a) the Commonwealth Ombudsman; or (b) a Deputy Commonwealth Ombudsman; or (c) a person who is a member of the staff referred to in subsection 31(1) of the Ombudsman Act 1976. serious Australian offence means an offence against a law of the Commonwealth, a State or a Territory that is punishable by a maximum term of imprisonment of 3 years or more or for life. serious foreign offence means an offence against a law in force in a foreign country that is punishable by a maximum term of imprisonment of 3 years or more or for life. staff member, when used in relation to the Australian Secret Intelligence Service or the Australian Signals Directorate, has the same meaning as in the Intelligence Services Act 2001. State or Territory inspecting authority, in relation to an interception agency of a State or Territory, means the authority that, under the law of the State or Territory concerned, has the function of making inspections of a similar kind to those provided for in section 55 of the Surveillance Devices Act 2004 when the interception agency is exercising powers under the law of that State or Territory that is of a similar nature to that Act. supply: (a) when used in relation to: (i) a facility; or (ii) customer equipment; or (iii) a component; includes supply (including re‑supply) by way of sale, exchange, lease, hire or hire‑purchase; and (b) when used in relation to software—includes provide, grant or confer rights, privileges or benefits. systemic vulnerability means a vulnerability that affects a whole class of technology, but does not include a vulnerability that is selectively introduced to one or more target technologies that are connected with a particular person. For this purpose, it is immaterial whether the person can be identified. systemic weakness means a weakness that affects a whole class of technology, but does not include a weakness that is selectively introduced to one or more target technologies that are connected with a particular person. For this purpose, it is immaterial whether the person can be identified. target technology: (a) for the purposes of this Part, a particular carriage service, so far as the service is used, or is likely to be used, (whether directly or indirectly) by a particular person, is a target technology that is connected with that person; and (b) for the purposes of this Part, a particular electronic service, so far as the service is used, or is likely to be used, (whether directly or indirectly) by a particular person, is a target technology that is connected with that person; and (c) for the purposes of this Part, particular software installed, or to be installed, on: (i) a particular computer; or (ii) a particular item of equipment; used, or likely to be used, (whether directly or indirectly) by a particular person is a target technology that is connected with that person; and (d) for the purposes of this Part, a particular update of software that has been installed on: (i) a particular computer; or (ii) a particular item of equipment; used, or likely to be used, (whether directly or indirectly) by a particular person is a target technology that is connected with that person; and (e) for the purposes of this Part, a particular item of customer equipment used, or likely to be used, (whether directly or indirectly) by a particular person is a target technology that is connected with that person; and (f) for the purposes of this Part, a particular data processing device used, or likely to be used, (whether directly or indirectly) by a particular person is a target technology that is connected with that person. For the purposes of paragraphs (a), (b), (c), (d), (e) and (f), it is immaterial whether the person can be identified. technical assistance notice means a notice given under section 317L. technical assistance notice information means: (a) information about any of the following: (i) the giving of a technical assistance notice; (ia) consultation relating to the giving of a technical assistance notice; (ii) the existence or non‑existence of a technical assistance notice; (iii) the variation of a technical assistance notice; (iv) the revocation of a technical assistance notice; (v) the requirements imposed by a technical assistance notice; (vi) any act or thing done in compliance with a technical assistance notice; or (b) any other information about a technical assistance notice. technical assistance request means a request under paragraph 317G(1)(a). technical assistance request information means: (a) information about any of the following: (i) the giving of a technical assistance request; (ii) the existence or non‑existence of a technical assistance request; (iii) the acts or things covered by a technical assistance request; (iv) any act or thing done in accordance with a technical assistance request; or (b) any other information about a technical assistance request. technical capability notice means a notice given under section 317T. technical capability notice information means: (a) information about any of the following: (i) the giving of a technical capability notice; (ii) consultation relating to the giving of a technical capability notice; (iii) the existence or non‑existence of a technical capability notice; (iv) the variation of a technical capability notice; (iva) consultation relating to the variation of a technical capability notice; (v) the revocation of a technical capability notice; (vi) the requirements imposed by a technical capability notice; (vii) any act or thing done in compliance with a technical capability notice; or (b) any other information about a technical capability notice. 317C Designated communications provider etc. For the purposes of this Part, the following table defines: (a) designated communications provider; and (b) the eligible activities of a designated communications provider. Designated communications provider and eligible activities Item A person is a designated communications provider if ... ... and the eligible activities of the person are ... 1 the person is a carrier or carriage service provider (a) the operation by the person of telecommunications networks, or facilities, in Australia; or (b) the supply by the person of listed carriage services 2 the person is a carriage service intermediary who arranges for the supply by a carriage service provider of listed carriage services (a) the arranging by the person for the supply by the carriage service provider of listed carriage services; or (b) the operation by the carriage service provider of telecommunications networks, or facilities, in Australia; or (c) the supply by the carriage service provider of listed carriage services 3 the person provides a service that facilitates, or is ancillary or incidental to, the supply of a listed carriage service the provision by the person of a service that facilitates, or is ancillary or incidental to, the supply of a listed carriage service 4 the person provides an electronic service that has one or more end‑users in Australia the provision by the person of an electronic service that has one or more end‑users in Australia 5 the person provides a service that facilitates, or is ancillary or incidental to, the provision of an electronic service that has one or more end‑users in Australia the provision by the person of a service that facilitates, or is ancillary or incidental to, the provision of an electronic service that has one or more end‑users in Australia 6 the person develops, supplies or updates software used, for use, or likely to be used, in connection with: (a) the development by the person of any such software; or (a) a listed carriage service; or (b) the supply by the person of any such software; or (b) an electronic service that has one or more end‑users in Australia (c) the updating by the person of any such software 7 the person manufactures, supplies, installs, maintains or operates a facility (a) the manufacture by the person of a facility for use, or likely to be used, in Australia; or (b) the supply by the person of a facility for use, or likely to be used, in Australia; or (c) the installation by the person of a facility in Australia; or (d) the maintenance by the person of a facility in Australia; or (e) the operation by the person of a facility in Australia 8 the person manufactures or supplies components for use, or likely to be used, in the manufacture of a facility for use, or likely to be used, in Australia (a) the manufacture by the person of any such components; or (b) the supply by the person of any such components 9 the person connects a facility to a telecommunications network in Australia the connection by the person of a facility to a telecommunications network in Australia 10 the person manufactures or supplies customer equipment for use, or likely to be used, in Australia (a) the manufacture by the person of any such customer equipment; or (b) the supply by the person of any such customer equipment 11 the person manufactures or supplies components for use, or likely to be used, in the manufacture of customer equipment for use, or likely to be used, in Australia (a) the manufacture by the person of any such components; or (b) the supply by the person of any such components 12 the person: (a) any such installation by the person o