Bills Digest No. 67 1997-98
Telecommunications Legislation Amendment Bill 1997
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:
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
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ISSN 1328-8091
© Commonwealth of Australia 1997
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Last updated: 28 October 1997
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