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