Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015 (39 of 2015)
Schedule 1 Data retention
Part 2 Other amendments
Telecommunications (Interception and Access) Act 1979
6L After Division 4B of Part 4-1
Insert:
Division 4C - Journalist information warrants
Subdivision A - The requirement for journalist information warrants
180G The Organisation
(1) An eligible person (within the meaning of subsection 175(2) or 176(2), as the case requires) must not make an authorisation under Division 3 that would authorise the disclosure of information or documents relating to a particular person if:
(a) the eligible person knows or reasonably believes that particular person to be:
(i) a person who is working in a professional capacity as a journalist; or
(ii) an employer of such a person; and
(b) a purpose of making the authorisation would be to identify another person whom the eligible person knows or reasonably believes to be a source;
unless a journalist information warrant is in force in relation to that particular person.
(2) Nothing in this section affects by implication the kind of person in relation to whom a warrant (other than a journalist information warrant) may be issued under this Act.
180H Enforcement agencies
(1) An authorised officer of an enforcement agency must not make an authorisation under section 178, 178A, 179 or 180 that would authorise the disclosure of information or documents relating to a particular person if:
(a) the authorised officer knows or reasonably believes that particular person to be:
(i) a person who is working in a professional capacity as a journalist; or
(ii) an employer of such a person; and
(b) a purpose of making the authorisation would be to identify another person whom the authorised officer knows or reasonably believes to be a source;
unless a journalist information warrant is in force, in relation to that particular person, under which authorised officers of the agency may make authorisations under that section.
(2) An authorised officer of the Australian Federal Police must not make an authorisation under Division 4A that would authorise the disclosure of information or documents relating to a particular person if:
(a) the authorised officer knows or reasonably believes that particular person to be:
(i) a person who is working in a professional capacity as a journalist; or
(ii) an employer of such a person; and
(b) a purpose of making the authorisation would be to identify another person whom the authorised officer knows or reasonably believes to be a source.
(3) Nothing in this section affects by implication the kind of person in relation to whom a warrant (other than a journalist information warrant) may be issued under this Act.
Subdivision B - Issuing journalist information warrants to the Organisation
180J Requesting a journalist information warrant
(1) The Director-General of Security may request the Minister to issue a journalist information warrant in relation to a particular person.
(2) The request must specify the facts and other grounds on which the Director-General considers it necessary that the warrant be issued.
180K Further information
(1) The Minister may require the Director-General of Security to give to the Minister, within the period specified in the requirement, further information in connection with a request under this Subdivision.
(2) If the Director-General breaches the requirement, the Minister may:
(a) refuse to consider the request; or
(b) refuse to take any action, or any further action, in relation to the request.
180L Issuing a journalist information warrant
(1) After considering a request under section 180J, the Minister must:
(a) issue a journalist information warrant that authorises the making of authorisations under Division 3 in relation to the particular person to which the request relates; or
(b) refuse to issue a journalist information warrant.
(2) The Minister must not issue a journalist information warrant unless the Minister is satisfied that:
(a) the Organisation's functions would extend to the making of authorisations under Division 3 in relation to the particular person; and
(b) the public interest in issuing the warrant outweighs the public interest in protecting the confidentiality of the identity of the source in connection with whom authorisations would be made under the authority of the warrant, having regard to:
(i) the extent to which the privacy of any person or persons would be likely to be interfered with by the disclosure of information or documents under authorisations that are likely to be made under the authority of the warrant; and
(ii) the gravity of the matter in relation to which the warrant is sought; and
(iii) the extent to which that information or those documents would be likely to assist in the performance of the Organisation's functions; and
(iv) whether reasonable attempts have been made to obtain the information or documents by other means; and
(v) any submissions made by a Public Interest Advocate under section 180X; and
(vi) any other matters the Minister considers relevant.
(3) A journalist information warrant issued under this section may specify conditions or restrictions relating to making authorisations under the authority of the warrant.
180M Issuing a journalist information warrant in an emergency
(1) The Director-General of Security may issue a journalist information warrant in relation to a particular person if:
(a) a request under section 180J has been made for the issue of a journalist information warrant in relation to the particular person; and
(b) the Minister has not, to the knowledge of the Director-General, made a decision under section 180L in relation to the request; and
(c) within the preceding period of 3 months:
(i) the Minister has not refused to issue a journalist information warrant in relation to the particular person; and
(ii) the Director-General has not issued such a journalist information warrant; and
(d) the Director-General is satisfied that, security will be, or is likely to be, seriously prejudiced if the access to which the request relates does not begin before a journalist information warrant can be issued and made available by the Minister; and
(e) either:
(i) the issuing of the warrant is authorised under subsection (3); or
(ii) the Director-General is satisfied that none of the Ministers specified in subsection (4) is readily available or contactable.
(2) The Director-General must not issue a journalist information warrant unless the Director-General is satisfied as to the matters set out in paragraphs 180L(2)(a) and (b).
Authorisation to issue a warrant under this section
(3) A Minister specified in subsection (4) may, if he or she is satisfied as to the matters set out in paragraphs 180L(2)(a) and (b), orally give an authorisation under this subsection for the Director-General to issue the warrant under this section.
(4) The Ministers who may orally give an authorisation are:
(a) the Minister; or
(b) if the Director-General is satisfied that the Minister is not readily available or contactable - any of the following Ministers:
(i) the Prime Minister;
(ii) the Defence Minister;
(iii) the Foreign Affairs Minister.
(5) The authorisation may specify conditions or restrictions relating to issuing the warrant.
(6) The Director-General must ensure that a written record of an authorisation given under subsection (3) is made as soon as practicable (but no later than 48 hours) after the authorisation is given.
Duration of a warrant under this section
(7) A journalist information warrant under this section must specify the period (not exceeding 48 hours) for which it is to remain in force. The Minister may revoke the warrant at any time before the end of the specified period.
Copies of warrant and other documents
(8) Immediately after issuing a journalist information warrant under this section, the Director-General must give the Minister:
(a) a copy of the warrant; and
(b) a statement of the grounds on which the warrant was issued; and
(c) either:
(i) a copy of the record made under subsection (6); or
(ii) if the Director-General was satisfied as mentioned in subparagraph (1)(e)(ii) - a summary of the facts of the case justifying issuing the warrant.
(9) Within 3 business days after issuing a journalist information warrant under this section, the Director-General must give the Inspector-General of Intelligence and Security:
(a) a copy of the warrant; and
(b) either:
(i) a copy of the record made under subsection (6); or
(ii) if the Director-General was satisfied as mentioned in subparagraph (1)(e)(ii) - a summary of the facts of the case justifying issuing the warrant.
(10) Subsection (9) has effect despite subsection 185D(1).
180N Duration of a journalist information warrant
A journalist information warrant issued under section 180L must specify the period (not exceeding 6 months) for which it is to remain in force. The Minister may revoke the warrant at any time before the end of the specified period.
180P Discontinuance of authorisations before expiry of a journalist information warrant
If, before a journalist information warrant issued under this Subdivision ceases to be in force, the Director-General of Security is satisfied that the grounds on which the warrant was issued have ceased to exist, he or she must:
(a) forthwith inform the Minister accordingly; and
(b) takes such steps as are necessary to ensure that the making of authorisations under the authority of the warrant is discontinued.
Subdivision C - Issuing journalist information warrants to enforcement agencies
180Q Enforcement agency may apply for a journalist information warrant
(1) An enforcement agency may apply to a Part 4-1 issuing authority for a journalist information warrant in relation to a particular person.
(2) The application must be made on the agency's behalf by:
(a) if the agency is referred to in subsection 39(2) - a person referred to in that subsection in relation to that agency; or
(b) otherwise:
(i) the chief officer of the agency; or
(ii) an officer of the agency (by whatever name called) who holds, or is acting in, an office or position in the agency nominated under subsection (3).
(3) The chief officer of the agency may, in writing, nominate for the purposes of subparagraph (2)(b)(ii) an office or position in the agency that is involved in the management of the agency.
(4) A nomination under subsection (3) is not a legislative instrument.
(5) The application may be made in writing or in any other form.
Note: The Electronic Transactions Act 1999 deals with giving information in writing by means of an electronic communication.
180R Further information
(1) The Part 4-1 issuing authority may require:
(a) in any case - the chief officer of the agency; or
(b) if the application is made, on the agency's behalf, by a person other than the chief officer - that other person;
to give to the Part 4-1 issuing authority, within the period and in the form specified in the requirement, further information in connection with the application.
(2) If the chief officer or other person breaches the requirement, the Part 4-1 issuing authority may:
(a) refuse to consider the application; or
(b) refuse to take any action, or any further action, in relation to the application.
180S Oaths and affirmations
(1) Information given to the Part 4-1 issuing authority in connection with the application must be verified on oath or affirmation.
(2) For the purposes of this section, the Part 4-1 issuing authority may:
(a) administer an oath or affirmation; or
(b) authorise another person to administer an oath or affirmation.
The oath or affirmation may be administered in person, or by telephone, video call, video link or audio link.
180T Issuing a journalist information warrant
(1) After considering an application under section 180Q, the Part 4-1 issuing authority must:
(a) issue a journalist information warrant that authorises the making of authorisations under one or more of sections 178, 178A, 179 and 180 in relation to the particular person to which the application relates; or
(b) refuse to issue a journalist information warrant.
(2) The Part 4-1 issuing authority must not issue a journalist information warrant unless the Part 4-1 issuing authority is satisfied that:
(a) the warrant is reasonably necessary for whichever of the following purposes are applicable:
(i) if the warrant would authorise the making of authorisations under section 178 - for the enforcement of the criminal law;
(ii) if the warrant would authorise the making of authorisations under section 178A - finding a person who the Australian Federal Police, or a Police Force of a State, has been notified is missing;
(iii) if the warrant would authorise the making of authorisations under section 179 - the enforcement of a law imposing a pecuniary penalty or for the protection of the public revenue;
(iv) if the warrant would authorise the making of authorisations under section 180 - the investigation of an offence of a kind referred to in subsection 180(4); and
(b) the public interest in issuing the warrant outweighs the public interest in protecting the confidentiality of the identity of the source in connection with whom authorisations would be made under the authority of the warrant, having regard to:
(i) the extent to which the privacy of any person or persons would be likely to be interfered with by the disclosure of information or documents under authorisations that are likely to be made under the authority of the warrant; and
(ii) the gravity of the matter in relation to which the warrant is sought; and
(iii) the extent to which that information or those documents would be likely to assist in relation to that matter; and
(iv) whether reasonable attempts have been made to obtain the information or documents by other means; and
(v) any submissions made by a Public Interest Advocate under section 180X; and
(vi) any other matters the Part 4-1 issuing authority considers relevant.
180U Form and content of a journalist information warrant
(1) A journalist information warrant issued under this Subdivision must be in accordance with the prescribed form and must be signed by the Part 4-1 issuing authority who issues it.
(2) A journalist information warrant issued under this Subdivision may specify conditions or restrictions relating to making authorisations under the authority of the warrant.
(3) A journalist information warrant issued under this Subdivision must specify, as the period for which it is to be in force, a period of up to 90 days.
(4) A Part 4-1 issuing authority must not vary a journalist information warrant issued under this Subdivision by extending the period for which it is to be in force.
(5) Neither of subsections (3) and (4) prevents the issue of a further warrant under this Act in relation to a person, in relation to which a warrant under this Act has, or warrants under this Act have, previously been issued.
180V Entry into force of a journalist information warrant
A journalist information warrant issued under this Subdivision comes into force when it is issued.
180W Revocation of a journalist information warrant by chief officer
(1) The chief officer of an enforcement agency:
(a) may, at any time, by signed writing, revoke a journalist information warrant issued under this Subdivision to the agency; and
(b) must do so, if he or she is satisfied that the grounds on which the warrant was issued to the agency have ceased to exist.
(2) The chief officer of an enforcement agency may delegate his or her power under paragraph (1)(a) to a certifying officer of the agency.
Subdivision D - Miscellaneous
180X Public Interest Advocates
(1) The Prime Minister shall declare, in writing, one or more persons to be Public Interest Advocates.
(2) A Public Interest Advocate may make submissions:
(a) to the Minister about matters relevant to:
(i) a decision to issue, or refuse to issue, a journalist information warrant under section 180L; or
(ii) a decision about the conditions or restrictions (if any) that are to be specified in such a warrant; or
(b) to a Part 4-1 issuing authority about matters relevant to:
(i) a decision to issue, or refuse to issue, the warrant under section 180T; or
(ii) a decision about the conditions or restrictions (if any) that are to be specified in such a warrant.
(3) The regulations may prescribe matters relating to the performance of the role of a Public Interest Advocate.
(4) A declaration under subsection (1) is not a legislative instrument.