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
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.
- 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).
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:
- carriers pay and recover from subscribers (i.e. consumers)
- carriers pay and recover from agencies/users
- government pays out of general revenue
- 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.
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.
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:
- the interception subject's identity and service number;
- information on the service and features of the interception
subject's telecommunications system.
- During the interception, law enforcement agencies may require
assistance to confirm that the intercepted communication is, in
fact, the target service.
- Law enforcement agencies may require multiple interceptions
simultaneously of the same service to allow monitoring by more than
one agency.
- Interceptions must be able to be implemented as quickly as
possible.
- Subsection 7(1)
- Paragraph 7(2)(b)
- Section 331
- Barrett, PJ. Review of the Long Term Cost Effectiveness of
Telecommunications Interception, Department of Finance,
Canberra, 1 March 1994.
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.
IRS staff are available to discuss the paper's contents with
Senators and Members
and their staff but not with members of the public.
ISSN 1328-8091
© Commonwealth of Australia 1997
Except to the extent of the uses permitted under the
Copyright Act 1968, no part of this publication may be
reproduced or transmitted in any form or by any means, including
information storage and retrieval systems, without the prior
written consent of the Parliamentary Library, other than by Members
of the Australian Parliament in the course of their official
duties.
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
Back to top