Overview of legislation
The Telecommunications (Interception and Access) Act 1979
The Telecommunications (Interception and Access) Act 1979 (the TIA Act)makes it an offence for a person to intercept a communication during its passage over a telecommunications system, without knowledge of the person(s) making the communication.
There are a number of exceptions from this prohibition, the most important of which is the ability to intercept communications under a warrant. Warrants can only be issued to certain Australian law enforcement agencies to obtain information in connection with the investigation of serious offences or to the Australian Security Intelligence Organisation to obtain information relevant to Australia’s national security.
The TIA Act also regulates access to stored communications. Stored communications are communications that either have ceased, or have not commenced, passing over a telecommunications system, and that cannot be accessed except by the parties to the communication or the telecommunications carrier who owns the system. The TIA Act makes it an offence for a person to access a stored communication without the knowledge of the sender or the intended recipient of the communication.
There are also exceptions from this prohibition, and again the most important one is the ability to access stored communications under a warrant. Warrants may be obtained by any declared enforcement or national security agency when the specific thresholds set out in the TIA Act are met.
In addition to setting out the circumstances in which warrants may be obtained, the TIA Act also contains significant reporting, oversight and accountability measures designed to ensure the proper use of lawful interception and stored communications access powers.
The TIA Act also includes provisions allowing for the lawful disclosure of telecommunications data by C/CSPs to enforcement and national security agencies where the disclosure is reasonably necessary for those agencies’ investigations.
The TIA Act requires all C/CSPs to ensure that each service that is offered is capable of being intercepted in accordance with a warrant issued under the TIA Act. The Act also includes an exemption regime, administered by the Communications Access Co-ordinator, a statutory office holder within the Attorney General’s Department, as well as obligations on certain C/CSPs to provide the Communications Access Co-ordinator with information about their interception capability.
Surveillance Devices Act 2004
The Surveillance Devices Act 2004 (the SD Act) provides Commonwealth law enforcement agencies, and State and Territory law enforcement agencies investigating offences with a federal aspect, with powers to use surveillance devices. This includes data surveillance devices, such as key logging devices or other computer-based surveillance, listening devices, optical surveillance devices and tracking devices.
Unlike the TIA Act, the SD Act does not prohibit the use of surveillance devices. This is due to the fact that while telecommunications can be wholly regulated by the Commonwealth under the Constitution, the use of surveillance devices cannot. Accordingly, the SD Act permits law enforcement agencies to, with appropriate authorisation, use a surveillance device in a manner that would otherwise be prohibited under relevant State or Territory law.
Telecommunications Act 1997 Act
The Telecommunications Act 1997 (the TA), administered by the Department of Broadband, Communications and the Digital Economy, contains obligations relevant to interception and access to stored communications and telecommunications data.
Section 313 of the TA obliges all C/CSPs to provide all assistance to Commonwealth, State and Territory Government agencies that is reasonably necessary for the enforcement of the criminal law or a law imposing a pecuniary penalty, the protection of the public revenue or the safeguarding of national security. Among other matters, this includes assistance to agencies in relation to the interception of communications, access to stored communications and disclosure of information according to processes in the TIA Act.