Bills Digest No. 67   1997-98 Telecommunications Legislation Amendment Bill 1997


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WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

CONTENTS

Passage History

Telecommunications Legislation Amendment Bill 1997

Date Introduced: 2 October 1997
House: Senate
Portfolio: Communications, the Information Economy and the Arts
Commencement: Apart from certain provisions which correct omissions and typing errors, the Act commences on the day on which it receives the Royal Assent.

Purpose

  • Create new arrangements for establishing interception capabilities for telecommunications services and for the funding of interception capabilities.
  • Make a number of minor technical amendments to the Telecommunications Act 1997 (1997 Act).

Background

Interception Capability

The Telecommunications (Interception) Act 1979 (TI Act) makes it an offence for a person to intercept a communication passing over a telecommunications system.(1) However, there are a number of exclusions from the prohibition including:

the interception of a communications under a warrant.(2)

Warrants can only be issued to obtain information in connection with the investigation of certain offences.

Part 15 of the 1997 Act deals with co-operation with law enforcement agencies.Section 319 imposes an obligation on all carriers to ensure that communications which take place on their network are able to be intercepted for the purposes of executing a warrant issued under the TI Act.This obligation is subject to the ability of the Minister for Communications and the Arts to, after consultation with the Attorney-General, exempt a carrier from that requirement.

The 1997 Act also obliges carriers to consult with various agencies (including the AFP, NCA, ASIO and State/Territory police) as directed by the Australian Communications Authority (ACA) about proposals to develop new technology for or use new technology in, its network or facilities.(3) Each new entrant into the recently deregulated telecommunications market will be required to consult with these law enforcement and national security agencies with a view to negotiating interception arrangements.This has the potential to tie up significant resources of these agencies in the process of negotiation.

In 1993-94 Mr Pat Barrett (at that time, a Deputy Secretary of the Department of Finance) conducted a review of the long-term cost-effectiveness of telecommunications interception.(4) In his report (Barrett Report), he made a number of recommendations, some of which were legislated in the Telecommunications (Interception) Amendment Act 1995.His findings/recommendations relevant to the matters contained in this Bill were:

  • Telecommunications interception capacity can be maintained over the next few years with an acceptable level of expenditure.Keeping in mind that the telecommunications industry will be completely deregulated from 1 July 1997, a further review of telecommunications interception should be held in 1997.
  • Developments in telecommunications technology and the increase in the number of carriers and service providers (particularly beyond 1997) will increase the cost of maintaining an effective telecommunications interception capability.If an agreement can be made on international user requirements (see below), the costs of maintaining interception capabilities can be substantially reduced if the capabilities are built into new technologies in accordance with that agreement.
  • Australia should continue to support the efforts of overseas law enforcement agencies to develop international user requirements.Australia should ratify the International User Requirements at the next relevant international meeting of law enforcement agencies.
  • Existing telecommunications interception arrangements (including authorisation and funding) have the potential to lead to delays in introduction of new telecommunications services and, in the case of one service, prevented the introduction of the service in a certain area.Any proposed solutions should take account of any effects of a diversion of skilled resources from telecommunications product development in meeting telecommunications interception requirements.

This Bill is pursuing the second point above, i.e. it will facilitate the prescription of interception capabilities which have been agreed upon at an international level.

Australia has agreed to the use of International User Requirements at a meeting of the International Law Enforcement Telecommunications Seminar.This Bill will empower the Attorney-General to determine the specifics of interception capability.The capability requirements will be based on the International User Requirements, a summary of which is provided in the Schedule to this Digest.

The basis of these international requirements is that when telecommunications technology manufacturers are designing new products, they will have regard to the interception user requirements and ensure that the new products are able to satisfy those requirements.

Funding Arrangements

Until 11 December 1995, the Commonwealth bore the cost of providing interception capability.

The Barrett Report identified four options for continued funding for the development of interception capabilities:

  1. carriers pay and recover from subscribers (i.e. consumers)
  2. carriers pay and recover from agencies/users
  3. government pays out of general revenue
  4. government pays and recovers from agencies/users.

The government implemented option 2 and the relevant legislation commenced on 12 December 1995.The terms and conditions of the provisions of interception capability to any given agency had to be based on the recovery, over time, of the cost of creation and development of the capability.

When replacing the Telecommunication Act 1991 with the 1997 Act there was no intention to alter the policy in respect of funding interception, i.e. carriers pay to establish the facility and recover from agencies/users.However, due to a significant drafting error in Division 3 of Part 15 of the 1997 Act carriers can presently only negotiate the terms and conditions of the provision of an interception capability where the Minister has exempted the carrier from the general requirement to provide interception capability and has subsequently given a notice to the carrier to provide a specific kind of interception capability.The Department has commented that this was not the intention of the legislation.

In any event, a change in policy has now occurred which will see carriers paying the costs of providing interception capability and agencies only being responsible for the costs of execution of individual warrants as well as any other services which are in addition to the basic listening and recording.

Provision of 'Help' under Part 14

Part 14 of the Telecommunications Act 1997 imposes an obligation on carriers (and carriage service providers and intermediaries) to give authorities of the Commonwealth and States/Territories such help as is reasonably necessary for enforcing the criminal law, protecting the public revenue and safeguarding the national interest.

That 'help' includes giving help by way of interception services.

Facility Installation Permits

Schedule 2, item 24 of this Bill makes an amendment to Schedule 3, clause 27 of the Telecommunications Act which deals with the issue of facility installation permits (FIP).FIPs are permits obtained by carriers from the Australian Communications Authority to install facilities. A carrier will ordinarily only apply for an FIP where the carrier is not able to negotiate the approval of the relevant landowners and administrative authorities to the installation.

When the carrier obtains the FIP, it is authorised to proceed with the installation regardless of the objections of the landowners and administrative authorities.However, the ACA must be satisfied that a number of criteria are present before it will issue the permit. One of those criteria is that the carrier's proposal has been rejected (either directly or because of a lack of response) by both the relevant property owner(s) and relevant administrative authorities (i.e. local councils and state authorities), after conducting reasonable negotiations.

If all relevant landowners give their approval, but the administrative authority does not, the carrier will not be eligible for an FIP.Similarly if all relevant administrative authorities give their approval but at least one landowner does not, the carrier will not be eligible to obtain an FIP.The proposed amendments will mean that a carrier will be eligible (provided that it can also satisfy the remaining criteria) if either the landowner or the administrative authority do not provide their approval.

Main Provisions

New Part 15

This Bill will completely replace Part 15 of the Telecommunications Act 1997.The provisions of the new Part 15 can be classified under five headings:

Obligation to Cooperate

There are three types of 'capability' which must be explained so as to understand this Part (Schedule 1, item 10, proposed section 320) :

  • interception capability - which is the ability to intercept a communication passing over a network or facility.
  • special assistance capability - which involves the use of a network or facility to render certain assistance to agencies.That assistance must not relate to interception capability or the execution of a warrant and it must relate to a matter set out in an international standard or guideline.
  • agency specific delivery capability - which is that ability of a carrier to meet specific delivery requirements of a particular agency.The delivery requirements relate to the delivery of help under Part 14 (i.e. assistance for the purpose of enforcing the criminal law, protecting the public revenue or safeguarding the national interest).This capability is explained in more detail below under the heading 'Proposed Technological Changes'.

Carriers must ensure that communications passing over their network can be intercepted in accordance with a warrant issued under the TI Act (proposed section 324).

The Attorney-General is empowered to determine specific interception capabilities (i.e. over and above the general requirement in proposed section 324) and special assistance capabilities.Any such determination must be based on an international standard or guidelines which deal with interception of communications and which are part of an international agreement or proposed international agreement (proposed section 322).If a particular type of carriage service (e.g. voice telephony) is covered by a determination, all carriers who supply that type of carriage service are obliged to supply it in accordance with the determination (proposed section 323).

There is provision for the Minister, with the agreement of the Attorney-General, to exempt a carrier from the obligations set out in the previous two paragraphs (proposed section 325).

Interception Capability Plans (ICPs)

An ICP is a written instrument which sets the policies of a carrier in relation to interception and the carrier's strategies for compliance with its obligation to provide interception capabilities.All carriers must lodge an ICP annually with the ACA and the agency coordinator (who is the Secretary to the Attorney-General's Department or another person appointed by the Attorney-General) (proposed section 329).

Agencies are given the opportunity to comment on the ICP and may request amendments (proposed section 332C).

From the date of lodgment, the carrier must ensure that its business activities are consistent with the plan (proposed section 332B).

Proposed Technological Changes

Division 4 of New Part 15 substantially expands the requirements of existing Part 15 in relation to consultation about new technology.

The new requirements are:

  • a carrier must notify the ACA when it 'becomes aware' that the implementation of a new technology is likely to have a materially adverse effect on the carrier's capacity to help agencies under Part 14 through the use of an interception capability (proposed section 332F).
  • the ACA must notify the agencies who may be interested in the proposed new technology and give those agencies an opportunity to consult with the carrier on the likely effect of the proposed implementation (proposed section 332G).
  • an agency may specify delivery requirements for the carrier when providing help to the agency under Part 14 through the use of an interception capability. The requirements may relate to the format in which the information is delivered, the place and manner in which it is delivered or any ancillary information that should accompany the information (proposed section 332J).
  • If specific delivery requirements are notified, the carrier must take all practical steps to ensure that it has a capability to meet the delivery requirements.That capability is referred to as an agency specific delivery capability.

Allocation of Costs

The basic rule when allocating development, installation and maintenance costs is (proposed section 332L):

  • those costs relating to an interception capability or special assistance capability are borne by the carrier or providers
  • those costs relating to an agency specific delivery capability imposed on a carrier under proposed section 332J are borne by the agency concerned.Those costs are recoverable on the same basis as the costs of interception capability under the Telecommunications Act 1991, i.e. the recovery, over time, of the cost of development,installation and maintenance of the capability.

As is mentioned in the Background above, agencies will also be responsible for the costs of execution of individual warrants as well as any other services which are in addition to the basic listening and recording.

Ministerial Review

An assessment of the long term cost-effectiveness of the funding arrangements for interception must be conducted by the Minister, in consultation with the Attorney-General, by 1 July 1999 (proposed section 332R).

Other Amendments

In respect of the allocation of costs of the execution of individual warrants, the Bill inserts the concept of 'delivery point' in Part 14.A 'delivery point' is a place within Australia from which interception related information can most conveniently be transmitted to an agency.Carriers and agencies will be required to agree to the location of the delivery point (Schedule 1, item 9, proposed section 314A).

The carrier will be obliged to bear the cost of transmitting intercepted information to the delivery point, and the agencies will pay the cost of any further transmission to another destination.

In respect of performance monitoring, the ACA is presently obliged to report to the Minister annually on all significant matters relating to the performance of carriers with particular reference to certain matters.This Bill provides that in addition to this requirement, the Minister may direct the ACA to monitor and report on matters specified by the Minister (Schedule 2, item 2, proposed section 105A).

Schedule 2, item 24 replaces clauses 27(1) and 27(2) of Schedule 3 to the Telecommunications Act 1997.This amendment is discussed under the heading 'Facility Installation Permits' in the Background above.

Digest Comment: The amendment will allow a carrier to obtain a refusal from an administrative authority (after having attempted negotiations) and proceed to the ACA with its application without having consulted any landowner.Alternatively the carrier could obtain a refusal from a landowner (after having attempted negotiations) and proceed to the ACA with its application without having consulted any administrative authorities.

Schedule

Summary of International User Requirements relating to the lawful interception

of telecommunications

  • Law enforcement agencies require access to:
  • the entire telecommunications transmitted;
  • call associated data that are generated to process the call;
  • information on the most accurate geographical location known to the network for mobile subscribers;
  • data on specific services used by the interception subject.
  • Law enforcement agencies require real-time, full-time monitoring capabilty.
  • Law enforcement agencies require interceptions to be implemented so that the operation of the target service appears unchanged.
  • Law enforcement agencies require interception to be designed and implemented so as to preclude unauthorised use and to safeguard the information related to the interception.
  • Before the implementation of interception, law enforcement agencies require:
    1. the interception subject's identity and service number;
    2. information on the service and features of the interception subject's telecommunications system.
    3. During the interception, law enforcement agencies may require assistance to confirm that the intercepted communication is, in fact, the target service.
    4. Law enforcement agencies may require multiple interceptions simultaneously of the same service to allow monitoring by more than one agency.
    5. Interceptions must be able to be implemented as quickly as possible.

    Endnotes

    1. Subsection 7(1)
    2. Paragraph 7(2)(b)
    3. Section 331
    4. Barrett, PJ. Review of the Long Term Cost Effectiveness of Telecommunications Interception, Department of Finance, Canberra, 1 March 1994.

     

    Contact Officer and Copyright Details

    Lee Jones
    24 October 1997
    Bills Digest Service
    Information and Research Services

    This paper has been prepared for general distribution to Senators and Members of the Australian Parliament. While great care is taken to ensure that the paper is accurate and balanced, the paper is written using information publicly available at the time of production. The views expressed are those of the author and should not be attributed to the Information and Research Services (IRS). Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion. Readers are reminded that the paper is not an official parliamentary or Australian government document.

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    ISSN 1328-8091
    © Commonwealth of Australia 1997

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    Published by the Department of the Parliamentary Library, 1997.

    This page was prepared by the Parliamentary Library, Commonwealth of Australia
    Last updated: 28 October 1997



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