Counter-Terrorism Legislation Amendment Act (No. 1) 2016 (82 of 2016)

Schedule 9   Telecommunications interception

Part 1   Amendments

Telecommunications (Interception and Access) Act 1979

21   At the end of section 46

Add:

Control order warrant

(4) If a control order warrant agency applies to an eligible Judge or nominated AAT member for a warrant in respect of a telecommunications service and the Judge or nominated AAT member is satisfied, on the basis of the information given to the Judge or nominated AAT member under this Part in connection with the application, that:

(a) Division 3 has been complied with in relation to the application; and

(b) in the case of a telephone application - because of urgent circumstances, it was necessary to make the application by telephone; and

(c) there are reasonable grounds for suspecting that a particular person is using, or is likely to use, the service; and

(d) either:

(i) a control order is in force in relation to the particular person; or

(ii) a control order is in force in relation to another person, and the particular person is likely to communicate with the other person using the service; and

(e) information that would be likely to be obtained by intercepting under a warrant communications made to or from the service would be likely to substantially assist in connection with:

(i) the protection of the public from a terrorist act; or

(ii) preventing the provision of support for, or the facilitation of, a terrorist act; or

(iii) preventing the provision of support for, or the facilitation of, the engagement in a hostile activity in a foreign country; or

(iv) determining whether the control order, or any succeeding control order, has been, or is being, complied with; and

(f) having regard to the matters referred to in subsection (5), and to no other matters, the Judge or nominated AAT member should issue a warrant authorising such communications to be intercepted;

the Judge or nominated AAT member may, in his or her discretion, issue such a warrant.

Note 1: Subsection (6) restricts the issuing of warrants if subparagraph (d)(ii) applies.

Note 2: For control orders that have been made but not come into force, see section 6T.

(5) For the purposes of subsection (4), the matters to which the Judge or nominated AAT member must have regard are:

(a) how much the privacy of any person or persons would be likely to be interfered with by intercepting under a warrant communications made to or from the service referred to in subsection (4); and

(b) how much the information referred to in paragraph (4)(e) would be likely to assist in connection with:

(i) the protection of the public from a terrorist act; or

(ii) preventing the provision of support for, or the facilitation of, a terrorist act; or

(iii) preventing the provision of support for, or the facilitation of, the engagement in a hostile activity in a foreign country; or

(iv) determining whether the control order, or any succeeding control order, has been, or is being, complied with; and

(c) to what extent methods for:

(i) the protection of the public from a terrorist act; or

(ii) preventing the provision of support for, or the facilitation of, a terrorist act; or

(iii) preventing the provision of support for, or the facilitation of, the engagement in a hostile activity in a foreign country; or

(iv) determining whether the control order, or any succeeding control order, has been, or is being, complied with;

that do not involve so intercepting communications have been used by, or are available to, the agency; and

(d) how much the use of such methods would be likely to assist in connection with:

(i) the protection of the public from a terrorist act; or

(ii) preventing the provision of support for, or the facilitation of, a terrorist act; or

(iii) preventing the provision of support for, or the facilitation of, the engagement in a hostile activity in a foreign country; or

(iv) determining whether the control order, or any succeeding control order, has been, or is being, complied with; and

(e) how much the use of such methods would be likely to prejudice:

(i) the protection of the public from a terrorist act; or

(ii) preventing the provision of support for, or the facilitation of, a terrorist act; or

(iii) preventing the provision of support for, or the facilitation of, the engagement in a hostile activity in a foreign country; or

(iv) determining whether the control order, or any succeeding control order, has been, or is being, complied with;

whether because of delay or for any other reason; and

(f) whether intercepting under a warrant communications made to or from the service referred to in subsection (4) would be the method that is likely to have the least interference with any person's privacy; and

(g) the possibility that the person in relation to whom the control order is in force:

(i) has engaged, is engaging, or will engage, in a terrorist act; or

(ii) has provided, is providing, or will provide, support for a terrorist act; or

(iii) has facilitated, is facilitating, or will facilitate, a terrorist act; or

(iv) has provided, is providing, or will provide, support for the engagement in a hostile activity in a foreign country; or

(v) has facilitated, is facilitating, or will facilitate, the engagement in a hostile activity in a foreign country; or

(vi) has contravened, is contravening, or will contravene, the control order; or

(vii) will contravene a succeeding control order; and

(h) in relation to an application by an interception agency of Victoria - any submissions made by the Victorian PIM under section 44A to the Judge or nominated AAT member; and

(i) in relation to an application by an interception agency of Queensland - any submissions made by the Queensland PIM under section 45 to the Judge or nominated AAT member.

(6) The Judge or nominated AAT member must not issue a warrant in a case in which subparagraph (4)(d)(ii) applies unless he or she is satisfied that:

(a) the agency has exhausted all other practicable methods of identifying the telecommunications services used, or likely to be used, by the person to whom the control order referred to in subparagraph (4)(d)(ii) relates; or

(b) interception of communications made to or from a telecommunications service used or likely to be used by that person would not otherwise be possible.