PROVISION OF REAL-TIME LAWFUL INTERCEPTION ASSISTANCE

Telecommunications Act 1997

Carriers and carriage service providers (“carriers”) (such as Vodafone) have legislative obligations under the Telecommunications Act 1997 (“TA”) to provide assistance to law enforcement agencies and national security agencies with the interception of individual customer communications (live communications) where authorised. Section 313(3) of the TA requires carriers to give the authorities such help as is reasonably necessary for the purposes of: (i) enforcing the criminal law and laws imposing pecuniary penalties; (ii) protecting the public revenue; and (iii) safeguarding national security. Section 313(7) of the TA specifies that a reference to ‘giving help’ under section 313(3) of the TIA includes the provision of interception services, including services in executing an interception warrant, and the providing of relevant information about any communication that is lawfully accessed under an interception warrant (sections 313(7)(a) and 313(7)(c)(i) of the TA).

Section 313(1) of the TA requires a carrier to do its best to prevent telecommunication networks and facilities from being used in, or in relation to, the commission of offences against the laws of the Commonwealth or the States and Territories. Examples of the kind of help law enforcement and national security agencies might request under section 313(3) TA include: (i) the provision of interception services; (ii) information from a carrier’s information base, such as billing records and (iii) assistance in tracing a call. Under Part 16 of the TA a carrier may be required to supply a carriage service for defence purposes or for the management of natural disasters.

Telecommunications (Interception and Access) Act 1979

The Telecommunications (Interception and Access) Act 1979 (“TIA”) gives law enforcement agencies and national security agencies the power to intercept live communications in specified circumstances.

Under Chapter 2, Part 2-2 of the TIA, interception warrants may be issued in respect of live communications to the Australian Security Intelligence Organisation (“ASIO”) and certain State
and Federal law enforcement agencies. Interception warrants permit such agencies to intercept telecommunications for national security, in emergencies and for law enforcement purposes.

Interception warrants may be issued to ASIO by the Federal Attorney General under sections 9 and 9A of the TIA for national security purposes, and by the Director-General of Security in emergencies under section 10 of the TIA. Under sections 11A, 11B and 11C of the TIA, telecommunications service warrants, named person warrants and foreign communications warrants, for the collection of foreign intelligence, may be issued to the Director-General of Security, an officer of ASIO appointed by the Director-General of Security and approved officers and employees of ASIO. A foreign communications warrant issued under section 11C may authorise entry on any premises specified in the warrant for the purpose of installing, maintaining, using or recovering any equipment used to intercept foreign communications (section 11C(1B) of the TIA). Under section 11B(4)(a) a foreign communications warrant must include a notice addressed to the carrier who operates the telecommunications system giving a description identifying the part of the telecommunications system that is covered by the warrant. Under section 30 of the TIA the interception of live communications may occur (without a warrant being issued) by the police in specified urgent situations, for example, where there is risk to loss of life or the infliction of serious personal injury or where threats to kill or seriously injure another person have been made. The police are able to request a carrier to intercept individual communications in these circumstances (Part 2-3 of Chapter 2 of the TIA).

Interception of live communications may also be authorised (without a warrant) under section 31A of the TIA by the Attorney-General to enable security authorities for the purpose of developing and testing interception capabilities (Part 2-4 of Chapter 2 of the TIA). Under Chapter 2, Part 2-5 of the TIA interception warrants may be issued to law enforcement agencies specified by the
Minister under section 34, such as the Australian Federal Police (“AFP”), the Australian Crime Commission, the Independent Commission Against Corruption and the State Police Forces. Interception warrants are issued by an ‘eligible judge’, namely a judge of a court created by the Commonwealth Parliament who has consented to being nominated, or by nominated
members of the Administrative Appeals Tribunal (“AAT”) (sections 46 and 46A of the TIA). Interception warrants may only be issued in relation to the investigation of serious offences as defined in section 5D of the TIA.

Chapter 5 of the TIA imposes obligations on carriers to ensure that it is possible to execute a warrant issued for interception purposes, unless an exception has been granted by the Minister, the Australian Communications and Media Authority (“ACMA”) or the Attorney-General’s Department. Specific technical capabilities are imposed including, by way of example, the nomination of delivery points in respect of a particular kind of telecommunication service of a carrier (section 188). In practice, when served with a warrant, the carrier will be required to intercept all traffic transmitted, or caused to be transmitted to and from the identifier of the target service used by the interception subject and described on the face of the warrant. The carrier will also need to deliver the intercepted communications through an agreed delivery point from which the intercepting agency may access those communications.

Under Part 5-3 of Chapter 5 of the TIA, the Minister may make determinations in relation to interception capabilities applicable to a specified kind of telecommunication service that involves, or will involve, the use of the telecommunication system. Carriers and nominated carriage service providers may be required under such determinations to lodge annual ‘Interception Capabilities Plans’ (“IC plan”) with the Communications Access Co-ordinator of the AttorneyGeneral’s Department. Part 5-4 specifies the obligations of a carrier in relation to an IC plan such as the matters to be set out in an IC plan (section 195(2) and the time for delivering IC plans (sections 196 and 197).

Under Part 5-5 of Chapter 5 of the TIA, the Communications Access Co-ordinator may make determinations in relation to delivery capabilities applicable to specified kinds of communication services, and to one or more specified interception agencies relating to such matters as the format in which lawfully intercepted information is to be delivered to an interception agency, the place and manner in which such information is to be delivered and any ancillary information that should accompany that information.

The Australian Security Intelligence Act 1979

The Australian Security Intelligence Act 1979 (“ASIO Act”) enables ASIO to use listening devices under warrants issued by the Minister. Division 2 of Part 3 of the ASIO Act enables an officer,
employee or agent of ASIO to use a listening device where issued with a warrant. A warrant may be issued by the Minister upon application by the Director-General where a person is engaged in, or is reasonably suspected by the Director-General of being engaged in activities prejudicial to security. A warrant issued under this section must not exceed a period of 6 months and may be revoked by the Minister at any time before the expiration of the period specified in the warrant. Where a listening device is installed in accordance with the warrant, ASIO may enter any premises for the purpose of recovering a listening device and may use any force that is necessary and reasonable to recover the listening device.

The Crimes Act 1914

The Crimes Act 1914 (Cth) (“Crimes Act”) authorises certain officers of the AFP and State and Territory police to obtain information pursuant to search warrants issued under the Crimes Act from premises, computers or computer systems and information in relation to telephone accounts held by a person.

Section 3LA of the Crimes Act enables a Constable (a member or special member of the AFP or a member of the police force or police service of a State or Territory) to apply to a magistrate for an order requiring a specified person to provide any information or assistance that is reasonable and necessary to enable a Constable to access data held in, or accessible from, a computer or data storage device.

Under section 3ZQN of the Crimes Act an authorised AFP officer may give a person a written notice requiring that person to produce documents that relate to serious terrorism offences.

Under section 3ZQO of the Crimes Act an authorised AFP officer may apply to a Judge of the Federal Circuit Court of Australia for a notice requiring a person to disclose documents relating to serious offences. Such documents may relate to a telephone account held by a specified person and details relating to the account, such as the details in respect of calls made to or from the relevant telephone number.

DISCLOSURE OF COMMUNICATIONS DATA

Telecommunications Act 1997

Carriers have legislative obligations under the TA to provide assistance to law enforcement and national security agencies which includes an obligation to disclose information where authorised.

Under section 284 of the TA disclosure of information to the ACMA, the Australian Competition and Consumer Commission (“ACCC”), the Telecommunications Ombudsman or the Telecommunications Universal Services Agency is permitted where the information may assist those agencies to carry out  their functions. Sections 279 and 280 of the TA permit the disclosure of information if the information is used in the performance of a person’s duties as an employee of a carrier or where the disclosure is authorised under a warrant and by law. Section 313(7) of the TA specifies that a reference to giving help under section 313 of the Act includes giving effect to a stored communications warrant and to providing relevant information about any communication that is lawfully accessed under a stored communications warrant (sections 313(7)(b) and 313(7)(c)(ii)).

Telecommunications (Interception and Access) Act 1979

Chapter 4 of the TIA specifies the circumstances in which information may be voluntarily disclosed to government and law enforcement agencies and the conditions by which authorisations can be issued requiring the disclosure of information. Sections 174 and 175 of the TIA provide for the disclosure of information to ASIO. Information may be disclosed voluntarily if it is in connection with  the performance of ASIO’s functions. Information may otherwise be disclosed pursuant to an authorisation issued by the Director General of Secretary, the Deputy Director of Secretary or a  pecified officer or employee of ASIO. Authorisations may be in respect of existing information or prospective information (specified information or documents that come into existence during the period for which the authorisation is in force).

Sections 177 to 180 of the TIA specify the circumstances in which disclosure of information or a document may be made to an enforcement agency. Voluntary disclosure of information may occur if the disclosure is reasonably necessary for the enforcement of the criminal law. Disclosure of information may also occur pursuant to authorisations issued by an authorised officer of an enforcement agency for the purpose of: (i) the enforcement of the criminal law; (ii) the location of missing persons; and (iii) the enforcement of a law imposing a pecuniary penalty and for the  protection of the public revenue.

Sections 180A to 180E of the TIA specify the circumstances in which disclosure of specified information or specified documents may be made to an officer of the AFP, or authorised by an authorised officer of the AFP, for the enforcement of the criminal law of a foreign country. The TIA enables ASIO and specified government agencies to access stored communications pursuant to a stored communication warrant issued under the TIA for the purpose of national security and law enforcement. Under Parts 3-2 and 3-3 of Chapter 3 of the TIA, stored communication warrants for law enforcement purposes may be issued to enforcement agencies for the purpose of investigating serious offences and serious contraventions. Enforcement agencies mean criminal law enforcement agencies, civil penalty enforcement agencies (agencies responsible for administrating a law imposing a pecuniary penalty) and public revenue agencies (agencies responsible for
administration of a law relating to the protection of the public revenue) (section 282 of the TA). Such agencies include but are not limited to agencies such as the ACCC, Australian Customs Services, the Australian Tax Office, the Australian Securities and Investments Commission (ASIC) and similar State and Territory agencies. ASIO can access stored communications using its
existing interception warrants (section 109 of the TIA).

Stored communication warrants can be issued by ‘eligible judges’ and nominated AAT members in relation to the investigation of serious contraventions. Serious contraventions, by way of example, include an offence under a law of the Commonwealth, a State or a Territory that is punishable by imprisonment for a maximum period of at least 3 years. Stored communication warrants may also be issued as part of a statutory civil proceedings which would render the person of interest to a pecuniary penalty.

The Crimes Act

Under the Crimes Act an authorised AFP officer may access metadata or stored communications pursuant to a search warrant.

The Australian Security Intelligence Act 1979

Under section 25A of the ASIO Act a stored communication may be accessed under a computer access warrant issued to ASIO. Additionally, a stored communication can be accessed by
ASIO if the access results from, or is incidental to, action taken by an officer of ASIO, in the lawful performance of his or her duties, for the purpose of: (i) discovering whether a listening device is being used at, or in relation to, a particular place; or (ii) determining the location of a listening device.

NATIONAL SECURITY AND EMERGENCY POWERS

Telecommunications Act 1997

The TA enables the Secretary of the Defence Department of the Chief of Defence Force to require the supply of a carriage service for defence purposes or for the management of natural
disasters.

Under section 335 of the TA a Defence authority may give a carriage service provider a written notice requiring the provider to supply a specified carriage service for the use of the Defence
Department or the Defence Force. If a requirement is in force, the provider must supply the carriage service in accordance with the requirement and on such terms and conditions as are
agreed between the provider and the Defence authority or, failing agreement, determined by an arbitrator appointed by the parties.

Division 4 of Part 16 of the TA provides that a carrier licence condition may include a “designated disaster plan” for coping with disasters and/or civil emergencies prepared by the Commonwealth, a State or a Territory.

OVERSIGHT OF THE USE OF THESE POWERS

Telecommunications (Interception and Access) Act 1979

The TIA Act contains a number of safeguards and controls in relation to interception as well as a number of reporting requirements. These requirements are designed to ensure that appropriate levels of accountability exist.

Under the TIA, records relating to interception warrants and the use, decimation and destruction of intercepted information must be maintained by law enforcement authorities. The Commonwealth Ombudsman is required to inspect certain reports (such as those maintained by the AFP) and report to the Attorney-General who must table in Parliament each year a
report containing specified information (Part 2-7 of Chapter 2 of the TIA).

Part 2-10 of Chapter 2 of the TIA provides that a person who was a party to a communication, or on whose behalf a communication was made, can apply for a civil remedy to the Federal Court of Australia or a court of a State or Territory if that communication was intercepted in contravention of the Act. Section 7(1) of the TIA prohibits the interception of a communication passing over a telecommunication system except in specified circumstances, for example where conducted under a warrant or by an officer of ASIO. Division 6 of Part 4-1 of Chapter 4 of the TIA creates offences for certain disclosures and uses of information and documents. By way of example, it is an offence to disclose information concerning whether an authorisation has been sought and the making of an authorisation unless disclosure is reasonably necessary to enable law enforcement agencies to enforce the criminal law.

Section 186 of the TIA requires an enforcement agency to give the Minister a written report, no later than 3 months after 30 June, of all authorisations issued under Chapter 4 of the TIA in the preceding financial year. The Minister must then cause a copy of that report to be tabled before Parliament.

Part 3-7 of Chapter 3 of the TIA provides that an aggrieved person can apply for a civil remedy to the Federal Court of Australia or a court of a State or Territory in relation to an accessed communication, if information relating to it is disclosed in contravention of section 108 of the TIA.

The same reporting requirements are placed on enforcement agencies and the Minister in respect of stored communication warrants as in relation to interception warrants (Part 3-6 of
Chapter 3 of the TIA).

Telecommunications Act 1997

Section 314 of the TA provides that, when providing help to an officer or authority of the Commonwealth, a State or a Territory under section 313(3), a party (carrier) must comply with the requirement to help on such terms and conditions as are agreed between the party and relevant agency or, failing agreement, as determined by an arbitrator appointed by the parties. Where the parties fail to agree on the appointment of an arbitrator, the ACMA is to appoint the arbitrator.

Judicial Review

Judicial review of government decision-making by a court is available under sections 39B(1) and 39B(1A) of the Judiciary Act 1903 (Cth) and section 75(v) of the Constitution. For example, in relation to the decision by a government officer to issue a warrant.

Section 39B(1) confers jurisdiction on the Federal Court with respect to any matter in which a writ of mandamus (that is, an order requiring a public official to perform a duty or exercise a statutory discretionary power), certiorari (that is, an order quashing an act) or prohibition (that is, an order preventing someone from performing a specified act) or an injunction (a Court order requiring a person to do, or refrain from doing, a certain thing) is sought against an officer/s of the Commonwealth.

Section 39B(1A) provides that the Federal Court’s original jurisdiction also includes jurisdiction in any matter “arising under any laws made by the Parliament” (other than a criminal matter).

Under section 75(v) of the Constitution, the High Court has original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth.

Judicial review does not concern itself with the merits of a decision, but considers whether a decision-maker has made their decision within the limits of the powers conferred by statute, the Constitution and the common law. So, when reviewing a decision to issue an interception warrant, the court will examine the legislation under which access to the data was granted and whether the requirements for granting access were met.

CENSORSHIP RELATED POWERS

Shut-down of network and services

The government does not have the legal authority to require the shutdown of Vodafone’s entire network for censorship related purposes. However the police can request the shut-down of an individual’s mobile service in limited circumstances.

Telecommunications Act 1997

Under Section 315 of the Telecommunications Act 1997 a police officer not below the rank of Assistant Commissioner may request a network provider (such as Vodafone) to suspend the supply of a mobile service in the case of an emergency. The police officer may only make such a request of Vodafone if he or she has reasonable grounds to believe that: (i) an individual has done (or has imminently threatened to do) an act that has resulted in, or is likely to result in, loss of life or serious personal injury, or the individual has made an imminent threat to cause serious damage to property or do an act which is likely to endanger their health or safety; (ii) the individual has access to Vodafone’s mobile service; and (iii) the suspension is reasonably necessary to prevent or reduce the likelihood of those acts occurring (or, as the case may be, recurring).

Blocking of URLs & IP addresses

Telecommunications Act 1997

Regulatory bodies and law enforcement agencies can require network providers (such as Vodafone) to provide assistance necessary to enforce the law including by requesting the blocking of IP addresses and/or ranges of IP addresses under Section 313 of the Telecommunications Act 1997. The Australian Federal Police have put in place a section 313 request to require Vodafone to block access to Interpol’s ‘worst of’ list of websites containing child sexual abuse images.

Broadcasting Services Act 1992

Under Schedule 5 and Schedule 7 of the Broadcasting Services Act 1992, the Australian Communications and Media Authority (“ACMA”) is empowered to require internet service providers
(such as Vodafone) to take action in respect of websites where they contain prohibited content. Content is prohibited where it is, or in ACMA’s judgment is likely to be, a refused classification or classified X18+; classified R18+ and not protected by an adult verification system. Where the content is hosted within Australia, the ACMA may require removal of the content,
the link or service, or require the use of a restricted access system. Where the prohibited content is hosted outside of Australia, the blocking is carried out by use of filtering software which internet service providers are required to offer to their customers; the software works by referring to a list of banned websites (and their URLs) maintained by ACMA. ACMA also has the power to issue local websites with a “take-down” notice in respect of content which must be removed; the step of blocking the website’s URL usually follows when the requested take down has not taken place.

Power to take control of Vodafone’s network

The government does not have legal authority to take control of Vodafone’s network.

Oversight of the use of  powers

Judicial Review

Under Section 75(v) of the Australian constitution, the High Court (Australia’s highest court) has original jurisdiction in all matters in which a writ of mandamus, prohibition or injunction
is sought against an officer of the Commonwealth.

At a lower level in the court hierarchy, the Federal Court has original jurisdiction over any matter arising under any laws made by Australia’s parliament, except for a criminal matter pursuant to Section 39B(1A). Under Section 39B(1) the Federal Court can decide on any matter in which a writ of mandamus, certiorari, prohibition or an injunction is sought against an officer of the Commonwealth.

A writ of mandamus is an order requiring a public official to perform a duty or exercise a statutory discretionary power. A certiorari is an order quashing a decision or act. A prohibition is an order preventing someone from performing a specified act. An injunction is a court order requiring a person to do, or refrain from doing, a certain thing. Judicial review does not concern itself with the  merits of a decision, but considers whether a decision-maker has made their decision within the limits of the powers conferred by Australia’s constitution, statute and common law.

This information was originally published in the Legal Annexe to the Vodafone Group Law Enforcement Disclosure Report in June of 2014, which was updated in February of 2015.

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